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THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


MICHIGAN  LAW 

• « .  c/y  ••• 

CONVEYANCING 


A  BRIEF 


Used  in  connection  with  lectures 
at  the  University  of  Detroit  by 
Lloyd  L.  Axford,  Detroit  Bar 


1916 

FRED  S.  DRAKE 
DETROIT 


T 


HISTORICAL  INTRODUCTION 


The  subject  of  Conveyancing  concerns  the  practical 
application  of  the  law  of  real  property  in  the  transfer 
of  estates  or  interests  in  land. 

The  transfer  of  an  estate  in  land  is  effected  in  the 
United  States : 

1.  By  voluntary  conveyances  by  one  person 
to  another. 

2.  By  descent  under  the  laws   of   succession 
existing  in  the  various  states  of  the  Union. 

3.  By  a  devise  contained  in  a  last  Will  and 
Testament. 

4.  By  operation  of  law. 

We  will  consider  only  voluntary  conveyances  and  a 
brief  reference  to  their  history  and  origin  may  aid  you 
in  your  study  of  a  rather  technical  subject. 

Our  conveyances,  like  our  common  law,  are  of  Eng- 
lish origin  and  grew  out  of  the  Feudal  System  and  the 
Statutes  Mortmain,  or  to  be  more  exact,  through  in- 
genious evasions  of  the  latter  statute. 


709759 


2  HISTORICAL  INTRODUCTION. 

The  Feudal  System  was  introduced  into  England 
shortly  after  the  Norman  Conquest.  Under  it  all  the 
lands  of  the  Kingdom  were  held  in  military  tenure  un- 
der the  King  as  the  ultimate  lord  of  the  fee.  The  bar- 
ons and  other  lords  took  an  oath  of  fealty  to  the  King 
and  received  an  allotment  of  land  under  an  obligation 
to  return  military  service.  The  barons  in  turn  made 
allotments  of  their  land  to  their  inferiors  or  vassals 
under  similar  obligations.  These  allotments  were  termed 
feuds  or  fees.  When  it  became  desirable  or  necessary 
to  assemble  the  armed  array  of  the  kingdom,  the  King 
called  upon  his  vassal,  the  baron,  to  perform  his  obliga- 
tion; the  baron  made  a  like  demand  upon  his  inferior, 
and  the  inferior  on  those  under  him,  if  any.  The  result 
was  an  assembled  power  for  defense  or  aggression.  IF 
any  vassal  failed  to  perform  the  condition  of  his  oath 
or  deserted  his  lord  in  battle,  his  feud  or  fee  was  for- 
feited to  his  overlord  and  again  allotted  by  the  lord  to 
others. 

In  early  days  of  Feudalism,  men  were  skilled  in  the 
art  of  war  rather  than  the  art  of  writing,  and  the  con- 
veyance or  transfer  of  the  feuds  or  fees  was  accom- 
plished by  delivery  of  possession  by  the  lord  to  the 
vassal  in  the  presence  of  the  peers  and  free  holders  of 
the  locality,  accompanied  by  an  oral  declaration  of  the 
boundaries  of  the  land  allotted  and  the  conditions  under 
which  the  vassal  was  to  hold,  which  were  assented  to  by 
him. 

This  public  delivery  of  possession  was  termed  Livery 
of  Seizen.  Later  of  Livery  of  Seizen  in  conveyances 
was  accomplished  by  the  delivery  of  some  symbol  which 
it  was  agreed  should  represent  the  land  as  a  twig  of  a 


FEUDAL  SYSTEM.  3 

tree  or  some  other  small  article  which  was  a  part  of  the 
particular  premises. 

This  oral  statement,  publicly  made,  coupled  with  Liv- 
ery of  Seizen,  constituted  a  Feoffment,  which  was  the 
original  conveyance  of  land  at  common  law. 

Proof  of  the  nature  and  terms  of  the  grant,  if  it  was 
afterwards  questioned,  was  dependent  upon  oral  testi- 
mony. Later  on  the  terms  of  feoffments  were  fre- 
quently reduced  to  writing,  which  was  sealed  and  de- 
livered for  the  purpose  of  preserving  the  evidence  of 
the  grant.  However,  a  deed  was  not  essential  to  the 
validity  of  feoffment  in  England  until  the  year  1845, 
though  the  statute  of  frauds  required  a  memorandum  in 
writing  at  an  earlier  date. 

As  stated,  the  armed  array  of  the  kingdom  was  de- 
pendent upon  the  feudal  tenants  performing  their  mili- 
tary tenure.  Corporations,  religious  and  temporal, 
came  into  existence  and  were  permitted  to  hold  lands, 
but  it  was  the  law  of  the  kingdom  that  corporations  ag- 
gregate could  not  commit  treason,  felony  nor  crime,  nor 
suffer  attainder,  forfeiture  nor  outlawry.  The  corpo- 
rate existence  was  perpetual.  There  was  no  way  to 
enforce  a  breach  of  the  conditions  of  a  feudal  tenure 
when  the  lands  were  held  by  a  corporation  and  be- 
cause of  their  perpetual  existence  the  overlords  were 
deprived  of  many  emoluments  incident  to  the  Feudal 
System. 

Whether  from  individual  self-interest  of  the  King  to 
preserve  the  emoluments  of  the  Feudal  System  or  from 
public  policy  in  preserving  the  armed  array  of  the  king- 
dom, statutes  were  enacted  and  modified  from  time  to 
time  prohibiting  the  holding  of  land  by  corporations  and 


4  HISTORICAL,  INTRODUCTION. 

declaring  them  forfeited  to  the  overlord  when  so  con- 
veyed. 

The  original  statute  was  termed  the  Statute  Mort 
main,    meaning    the    statute    against    the    dead    hand. 

To  evade  the  penalty  of  forfeiture,  uses  and  trusts 
which  had  existed  under  the  civil  or  Roman  law  were 
introduced  into  England.  Under  this  device  the  land 
was  granted  to  one  who  contemporaneously  agreed  that 
another,  designated  as  cestui  que  trustent,  should  have 
the  rents  and  profits  of  the  premises.  Under  this  scheme 
the  corporations  as  cestui  que  trustents  did  not  acquire 
the  legal  title,  but  received  all  the  benefits  of  the  own- 
ership of  the  land.  Their  ingenuity  was  met  by  the 
Statutes  of  Uses  which  declared  in  effect  that  the  party 
entitled  to  the  rents  and  profits  of  the  land  should  be 
deemed  sole  and  complete  owner,  that  is,  the  cestui  que 
trustent  took  the  legal  title  as  well  as  the  rents  and 
profits. 

It  may  be  observed  that  the  strife  between  legislative 
power  and  corporate  interest,  now  so  prominent  before 
the  public,  originated  as  early  as  the  reign  of  Henry 
III,  and  Blackstone,  in  his  Commentaries,  states  that 
the  Saxons  some  sixty  years  previous  to  the  conquest, 
imposed  restrictions  upon  the  corporate  holding  of 
lands. 

The  instrument  employed  to  create  the  use  was  a  deed 
or  contract  of  bargain  and  sale  by  which  the  owners  of 
the  land  bargained  or  agreed  to  sell  and  convey  it  to 
another  for  a  consideration  and  by  the  terms  of  the 
same  instrument,  or  a  part  of  the  instrument,  the 
grantee  agreed  to  stand  seized  of  the  land  for  the  use 


DEFINITION  OF  DEED.  5 

of  the  purchaser.  As  stated,  the  Statute  of  Uses  exe- 
cuted the  trust,  and  the  purchaser  became  vested  with 
the  seller's  title. 

Livery  of  Seizen,  the  only  publicity  given  the  transfer 
of  land,  was  not  necessary  in  this  class  of  conveyances. 
Some  years  later  Parliament,  to  prevent  secret  trans- 
fer of  land,  declared  that  bargain  and  sales  should  not 
pass  an  estate  in  freehold  unless  made  by  indenture  and 
enrolled  in  certain  public  offices. 

This  deed  of  bargain  and  sale  is  the  precedent,  which, 
modified  and  curtailed  from  time  to  time,  resulted  in  the 
deeds  of  conveyance  in  common  use  in  most  of  the  Unit- 
ed States. 

Blackstone,  in  his  consideration  of  the  subject  of  con- 
veyances, in  addition  to  the  conveyance  of  feoffment  and 
bargain  and  sale,  has  classified  some  fourteen  convey- 
ances and  most  text  writers  have  followed  his  example 
This  refinement  of  classification  in  most  instances  re- 
lates to  the  particular  interest,  estate  or  tenure  sought 
to  be  conveyed  and  is  of  little  or  no  practical  impor- 
tance. 

A  deed  is  defined  by  Blackstone  as 

"A  writing  sealed  and  delivered  by  the  party." 

Mr.  Washburn  states: 

"A  deed  is  defined  to  be  a  writing  containing 
a  contract  and  delivered  by  the  parties  thereto." 

In  fixing  these  definitions  in  your  mind  it  must  be  re- 
membered that  the  deed  thus  defined  is  not  limited  to 
conveyances  of  land,  but  includes  all  formal  written 
contracts  required  at  common  law  to  be  under  seal. 


6  DEEDS. 

Bonds  or  mortgages  were  "writings  sealed  and  de- 
livered by  the  party"  and  were  deeds  within  either  defi- 
nition, and  in  this  state  in  a  criminal  prosecution  for 
forgery  where  the  information  charged  the  forging  of 
a  deed  a  conviction  was  sustained  where  the  proofs 
showed  the  forging  of  a  chattel  mortgage. 

People  vs.  Watkins,  106  Mich.,  437. 

The  popular  and  common  use  of  the  term  "deed"  re- 
fers to  a  conveyance  of  land,  other  sealed  contracts  be- 
ing referred  to  by  their  distinctive  name,  as  bonds, 
mortgages,  leases,  assignments,  discharges,  etc. 

The  definitions  given  have  been  criticized  and  en- 
larged by  text  writers,  but  the  question  of  whether  or 
not  an  instrument  constitutes  a  conveyance  of  land  has, 
so  far  as  my  knowledge  goes,  never  been  determined  by 
the  application  of  any  definition. 

The  form  of  a  deed  at  common  law  was  either  an  In- 
denture or  Deed  Poll.  If  the  instrument  contained  obli- 
gations of  both  the  grantor  and  the  grantee,  it  was  pre- 
pared in  two  parts  upon  the  same  sheet  of  parchment 
or  paper  and  then  cut  apart  in  an  indented  or  wavy  line. 
The  two  parts  were  identified,  when  it  became  necessary 
by  fitting  them  together.  The  two  papers  when  fitted 
together  made  the  complete  deed,  hence  the  term  In- 
denture. 

If  the  instrument  contained  the  obligation  of  but  one 
party,  it  consisted  of  but  one  part  and  was  polled  or 
cut  even,  which  is  the  origin  of  the  term  Deed  Poll. 

The  common  form  of  deeds  in  use  in  Michigan  at  the 
present  time  are  termed: 


EXECUTION  BY  THE  GEANTOE.  7 

1.  Warranty  Deeds. 

2.  Special  Warranty  Deeds. 

3.  Quit  Claim  Deeds. 

All  of  these  retain  in  part  at  least  the  form  of  the 
old  indenture  and  commence,  "This  Indenture,  Made 
this  Day,  etc." 

The  printing  of  blank  deeds  or  use  of  blank  form  of 
deeds  containing  the  words  "Warranty  Deed"  or  "Spe- 
cial Warranty  Deed,"  unless  such  deed  be  an  absolute 
warranty,  is  made  a  statutory  crime  in  Michigan. 

§11368  Comp.  Laws,  Mich.,  1897. 


Deeds  made  by  those  in  a  representative  capacity, 
such  as  executors,  guardians,  sheriffs,  commissioners, 
and  other  officers  of  the  court,  retain  the  form  of  the 
old  Deed  Poll,  and  usually  commence,  "Know  All  Men 
by  These  Presents,  That  I,"  and  continue  with  a  recital 
of  the  source  of  authority,  and  a  grant  of  the  land  in 
question  with  covenants  limited  to  the  acts  of  the 
grantor. 

The  use  of  the  Indenture  with  its  means  of  mechan- 
ical identification  may  have  been  a  device  to  aid  the  il- 
literate in  identifying  their  papers  in  the  same  manner 
that  the  seal  was  used  to  enable  them  to  identify  signa- 
tures, though  I  know  of  no  authority  for  this  idea. 

Deeds  in  modern  use  are  ordinarily  executed  by  the 
grantor  only,  but  we  occasionally  meet  with  deeds 
drafted  for  the  purpose  of  effecting  a  partition  or  ex- 
change, signed  by  all  of  the  parties,  and  most  deeds  con- 
tain the  substance  of  the  old  common  law  forms,  though 
very  much  curtailed. 


8  DEEDS. 

In  Michigan  and  many  of  the  other  states  the  Legis- 
latures have  provided  what  is  termed  a  "  Statutory 
Short  Form  of  Deed."  These  forms  contain  in  sub- 
stance the  date,  names  of  the  parties,  description  of  the 
land,  a  recital  of  the  consideration;  the  words  "convey 
and  warrant"  or  the  word  "quitclaim"  are  substituted 
for  the  remainder  of  the  old  common  law  form,  and  the 
statute  provides  that  "the  conveyance  duly  signed 
sealed  and  acknowledged"  containing  these  words  shall 
be  construed  to  have  the  same  effect  as  if  the  common 
law  form  had  been  followed.  Their  use  has  not  been 
popular. 

§9014  Compiled  Laws,  Mich.,  1897. 


Warranty  Deeds  and  Quitclaim  Deeds  differ  in  form, 
in  that  the  former  contains  covenants  or  agreements 
guaranteeing  the  condition  of  the  grantor's  title,  while 
the  quitclaim  deed  contains  no  covenants  of  any  kind. 

The  legal  effect  of  the  two  instruments  and  the  rights 
of  a  purchaser  under  one  or  the  other  are  decidedly  dif- 
ferent. The  quitclaim  deed  under  the  rule  which  obtains 
in  Michigan  and  most  of  the  states,  conveys  only  the 
estate  which  the  grantor  had  at  the  date  of  delivery, 
and  the  purchaser  under  a  quitclaim  deed  cannot  claim 
the  position  of  a  bona  fide  purchaser  for  value  under  the 
recording  laws. 

On  the  other  hand,  a  warranty  deed  not  only  con- 
veys the  present  interest  of  the  grantor  but  usually 
conveys  any  other  title  outstanding  at  the  time  of  the 
grant,  which  the  grantor  afterwards  acquires,  and  the 
purchaser  in  the  absence  of  actual  notice  is  a  bona  11  de 
purchaser,  and  protected  against  any  claims  against 
the  property  which  have  not  been  placed  of  record  in  the 


LAWS  OF  THE  LAND. 

proper  public  office,  and  of  which  he  had  no  actual  no- 
tice. 

The  rule  that  a  purchaser  under  a  quit-claim  deed 
cannot  be  a  bona  fide  purchaser  has  been  changed  by 
statute  as  to  deeds  made  after  August  23rd,  1915. 

Act  199,  P.  A.,  Mich.,  1915 

I  believe  that  if  the  common  law  rule  were  followed 
to  its  origin  it  would  be  found  that  it  applied  to  the  old 
common  law  deed  of  release  and  that  our  so-called  quit- 
claim deed  in  common  use  is  technically  a  deed  of  bar- 
gain and  sale  and  is  not  the  quit-claim  deed  known  to 
the  common  law. 

The  formality  of  livery  of  seizen  has  been  abolished 
in  all  the  states,  and  conveyances  of  land  are  required 
to  be  in  writing.  However,  land  may  still  pass  without 
writing.  For  example,  if  an  oral  gift  of  land  has  been 
made  and  the  donee  takes  possession  of  T;he  land,  and  is 
permitted  to  remain  in  possession,  claiming  ownership 
for  such  a  period  of  time  that  the  statute  of  limitations 
bars  the  donor's  action  to  recover  possession,  he  will 
acquire  an  unassailable  title,  and  the  Court  of  Equity 
will  usually  enforce  an  oral  agreement  to  sell  land  where 
possession  has  been  taken  and  valuable  improvements 
made  by  the  purchaser. 

While  not  strictly  a  part  of  the  law  of  conveyancing, 
it  is  germane  to  note  at  this  time,  that  though  a  deed 
may  be  termed  a  contract,  the  law  of  the  place  where  the 
land  is  situated  and  not  the  law  of  the  place  where  the 
deed  is  made,  as  in  other  contracts,  govern  the  validity 
of  conveyances  as  to  their  form,  the  capacity  of  the  par- 
ties, their  construction  and  interpretation  and  the  val- 
idity of  their  provisions. 


10  DEEDS. 

For  example :  If  a  deed  were  executed  in  the  State  of 
Massachusetts  conveying  land  situated  in  that  state  and 
also  conveying  land  in  Michigan,  to  a  trustee  with  a 
direction  to  apply  the  rents  and  profits  to  A  for  life, 
after  his  death  to  B  for  life,  after  his  death  to  C  for 
life  and  at  C's  death  to  convey  the  land  to  C's  then  liv- 
ing issue,  the  instrument  would  create  a  valid  trust  in 
the  Massachusetts  lands  where  the  common  law  rule 
against  perpetuities  prevails,  while  the  trust  and  the 
deed  creating  it  as  to  the  Michigan  lands  would  be  void 
under  the  Michigan  statutes  regulating  the  suspension 
of  alienation. 

While  not  strictly  an  exception  to  the  rule  stated,  it 
must  be  observed  that  the  Constitution  of  the  United 
States  provides: 

"That  all  treaties  made  or  which  shall  be 
made,  shall  be  the  supreme  law  of  the  land  and 
the  judges  in  every  state  shall  be  bound  thereby. ' ' 

It  follows  that  this  provision  overrules  the  laws  of 
the  various  states.  If  the  law  of  a  particular  state  pro- 
hibited the  holding  of  land  by  an  alien  and  a  treaty  be- 
tween the  United  States  and  alien's  sovereign  provided 
otherwise,  the  conveyance  to  the  alien  would  be  upheld. 

In  referring  to  the  particular  parts  of  a  deed,  we  still 
use  the  designations  which  Blackstone  applied  150  years 
since,  and  which  he  then  stated  "had  been  well  consid 
ered  and  settled  for  successive  ages." 

While  all  the  formal  parts  do  not  necessarily  enter 
into  every  deed,  their  names  and  the  order  in  which 
they  usually  appear  are  as  follows: 

1.  The  premises. 

2.  The  habendum. 


HABENDUM.  11 

3.  ihe  tenendum. 

4.  The  reddendum. 

5.  The  conditions. 

6.  The  covenants. 

7.  The  conclusion. 

Premises : 
In  this  part  we  find: 

(A)  The  date,  if  the  instrument  is  in  form  of 
an  Indenture.    If  in  the  form  of  a  Deed  Poll  the 
date  is  in  the  conclusion. 

(B)  The  parties,  their  residences,  title  or  oc- 
cupation and  the  explanatory  recitals   concern- 
ing the  parties,  or  the  source  of  their  authority 
(the  custom  of  stating  the  title  and  occupation  of 
the  parties  is  not  observed,  though  if  this  custom 
had  been  preserved  it  would  be  a  great  aid  when 
it  is  necessary  to  identify  a  party  to  an  ancient 
deed). 

(C)  The   statement  of  the   consideration   and 
the  acknowledgment  of  its  payment. 

(D)  The  operative  words  of  conveyances,  viz: 
grant,  bargain,  sell,  release,  alien  and  confirm. 

(E)  Words  of  limitation,  that  is  language  in- 
dicating whether  the  estate  conveyed  is  a  fee  or 
less  than  a  fee. 

(F)  The  description  of  the  property  conveyed. 

Habendum : 

In  this  part  of  the  deed  we  find  the  limitations  of 
the  estate  granted  viz :  Words  determining  whether  the 
deed  conveys  an  estate  in  fee  simple  or  for  life  or  years, 
though  words  of  limitations  are  usually  inserted  in  the 
premises  in  connection  with  operative  words. 


12  DEEDS. 

The  Tenendum 

Is  now  obsolete  and  originally  stated  the  feudal  ten- 
ure and  the  feudal  lord  to  whom  it  should  be  rendered. 

Reddendum : 

In  this  part  of  the  deed  we  find  the  reservations ;  for- 
merly rents  or  menial  service,  now  usually  possession 
for  a  limited  time. 

Conditions : 

In  this  part  of  the  deed  are  sometimes  inserted 
conditions  upon  the  happenings  or  non-happenings 
of  which  the  estate  granted  is  enlarged  or  defeated. 
For  example,  land  is  conveyed  by  father  to  son,  but 
upon  condition  that  the  son  support  the  father  during 
life,  and  if  the  son  fails  to  perform  his  obligation  the 
land  reverts  to  the  father  and  the  deed  is  void. 

Covenants : 

In  warranty  deeds  agreements  are  always  inserted 
which  usually  consist  in  an  undertaking  on  the  part 
of  the  grantor  that  he  is  seized  in  fee,  that  the  land 
is  free  from  incumbrances,  and  that  he  will  warrant 
and  defend  the  title  against  all  lawful  claims. 

Conclusion : 

In  this  part  of  the  deed  we  find  a  recital  that  the  deed 
has  been  executed,  the  date  of  signing  and  sealing  or  a 
reference  to  the  date  in  the  premises. 

This  is  followed  by  the  signatures  of  the  parties,  their 
seals,  if  required,  the  signatures  of  the  witnesses,  if  re- 
quired, and  usually  an  acknowledgment  or  proof  of  exe- 
cution. 


DATE  OF  DEEDS.  13 

An  acknowledgment  or  proof  of  execution  was  not  a 
part  of  the  common  law  deed,  and  in  most  of  the  states 
is  not  essential  to  the  validity  of  modern  deeds,  though 
a  deed,  the  execution  of  which  is  neither  proved  nor  ack- 
nowledged is  not  usually  entitled  to  record. 

It  would  seem  from  the  language  of  the  statute  au- 
thorizing the  use  of  the  statutory  form  of  deeds  taken 
literally  that  acknowledgments  are  essential  to  their 
validity. 

§9014,  Comp.  Laws,  Mich.,  1897. 


DATE  OF  DEEDS. 

The  date  was  not  essential  to  the  validity  of  a  deed 
at  common  law.  The  date  would  seem  to  be  essential 
to  the  statutory  short  form. 

A  deed  takes  effect  or  becomes  operative  at  the  date 
of  delivery  by  the  grantor  to  the  grantee,  and  is  legally 
presumed  to  have  been  delivered  at  its  date  of  execu- 
tion. 

If  the  instrument  is  required  by  law  to  be  acknowl- 
edged, it  is  the  rule  in  Michigan  and  some  of  the  other 
states  that  if  acknowledged  at  a  date  later  than  the 
stated  date  of  execution,  it  is  presumed  to  have  been 
delivered  at  the  date  of  its  acknowledgment. 

Blanchard  vs.  Taylor,  12  Mich.,  339. 
Johnston  vs.  Moore,  28  Mich.,  3. 

This  is  only  a  legal  presumption  and  may  be  over- 
come by  proof  and  circumstances. 

Eaton  vs.  Trowbridge,  38  Mich.,  354. 


14  DEEDS. 

The  true  date  of  delivery  becomes  important  where 
title  is  derived  through  a  quit-claim  deed,  because,  as 
before  stated,  such  a  deed  passes  only  the  title  the 
grantor  had  at  the  date  of  its  delivery.  It  is  also  im- 
portant in  connection  with  the  covenants  against  incum- 
brances,  particularly  in  relation  to  taxes. 

In  closing  sales  of  real  estate  many  a  wrangle  will 
arise  as  to  whether  the  seller  or  purchaser  must  pay  an 
existing  tax  or  whether  or  not  a  purchaser  can  recover 
the  amount  paid  for  a  tax  in  an  action  for  breach  of  the 
covenant  against  incumbrances. 

The  rule  is  that  if  a  tax  is  a  lien  upon  the  land  at  the 
date  of  the  delivery  of  a  deed,  the  grantor  is  bound  to 
pay  it,  while  if  not  then  a  lien,  the  purchaser  must  bear 
the  burden. 

The  leading  Michigan  cases   are: 

Eaton  vs.  Cheeborough,  82  Mich.,  214,  which  relates 
to  general  taxes,  and 

Lindsay  vs.  Eastwood,  72  Mich.,  336,  which  relates  to 
special  assessments. 

A  reading  of  these  cases  will  give  you  the  reasons  for 
the  rules  and  you  will  also  observe  that  the  time  the  tax 
becomes  a  lien  upon  the  land  is  fixed  by  statutory  law. 

PARTIES  TO  DEEDS. 

In  every  deed  there  must  be  a  grantor  and  grantee. 
The  grantor  must  have  the  same  capacity  as  is  required 
in  an  ordinary  contract. 


PARTIES.  15 

At  common  law  a  grantor  could  not  convey  to  him- 
self. For  a  modern  decision  where  a  deed  from  a  man 
to  himself  and  his  wife  was  involved,  read 

Wright  vs.  Belknap,  21  D.  L.  N.,  1225. 

A  deed  executed  by  an  insane  or  incompetent  person 
or  procured  by  fraud  or  undue  influence  is  either  void 
or  voidable  and  may  be  set  aside. 

In  Michigan  our  courts  first  held  such  a  deed  void. 
Rogers  vs.  Blackwell,  49  Mich.,  192. 

Later  a  deed  from  an  insane  person  was  held  void- 
able. 

Wolcott  vs.  Insurance  Co.,  137  Mich.,  309. 

The  distinction  between  a  void  and  a  voidable  deed 
is,  that  in  the  former  no  rights  are  acquired  by  the 
grantee,  while  in  the  latter,  the  grant  passes  title  unless 
repudiated,  and  it  may  be  said  that  the  circumstances 
surrounding  each  particular  case  are  important  in  de- 
termining which  rule  applies. 

An  infant's  deed  is  voidable,  and  may  be  affirmed  by 
express  act  or  by  acquiescence  after  attaining  majority. 

The  majority  of  a  married  woman  in  Michigan  so  far 
as  it  relates  to  releasing  her  inchoate  dower  or  any 
other  interest  in  her  husband's  lands  is  reached  at  the 
age  of  eighteen  years. 

Act  187,  P.  A.  of  Mich.,  1899. 

In  drafting  deeds  it  is  customary  to  designate  the 
grantors  as  parties  of  the  first  part,  and  the  grantees 
as  parties  of  the  second  part,  together  with  their  resi- 


16  DEEDS. 

dences,  and  often   some  recital  connecting  them  with 
previous  title  or  other  explanatory  matter  is  added. 

These  additions  have  no  bearing  upon  the  validity  of 
the  deed,  but  serve  to  identify  the  person.  They  are 
useful  when  it  becomes  necessary  to  identify  the  parties 
to  an  old  deed.  If  the  grantor  is  a  married  man,  his 
wife  usually  joins  in  the  execution  of  the  deed,  and  her 
name  is  followed  by  a  recital,  "his  wife." 

If  the  grantor  be  an  unmarried  man,  his  name  is  usu- 
ally followed  by  recital,  "a  single  man"  or  a  "wid- 
ower. ' ' 

Under  the  law  now  in  force  in  Michigan  a  deed  or 
mortgage,  which  does  not  state  whether  the  male  grant 
ors  are  married  or  single,  is  not  entitled  to  record. 

Act  79,  Pub.  Act  Mich.,  1915. 

It  is  customary  in  examining  land  titles  to  accept 
these  recitals  as  true,  but  they  are  not  conclusive  and 
are  of  no  effect  if  false.  If  a  married  man  makes  a 
deed  reciting  in  the  deed  that  he  was  single,  it  would 
not  bar  his  wife's  inchoate  dower,  though  if  the  deed 
were  a  quit  claim  an  action  might  lie  upon  the  false 
misrepresentation.  In  such  a  case  a  purchaser  under  a 
warranty  deed  would  have  his  remedy  under  the  cove- 
nants. 

Recitals  are  not  evidence  of  the  facts  stated. 
Wolf  vs.  Holton,  104  Mich.,  107. 

They  are  ordinarily  binding  upon  parties  to  the  deed 
but  not  upon  strangers,  but  they  are  notice  of  the  facts 
stated. 


PRESUMPTION  OF  IDENTITY.  17 

Recitals  in  ancient  documents,  however,  are  evidence 
and  binding  upon  strangers. 

Norris  vs.  Hall,  124  Mich.,  170. 

If  the  records  of  a  land  title  show  a  grant  to  one  per- 
son followed  by  a  grant  from  a  person  of  the  same 
name,  there  is  a  legal  presumption  that  the  persons  are 
identical. 

Goodell  vs.  Hubbard,  32  Mich.,  47. 

In  drawing  deeds  it  is  desirable  that  you  have  an  ab- 
stract of  title  before  you  and  keep  the  spelling  of  the 
names  uniform,  that  this  presumption  may  be  preserved 
beyond  question,  or  if  there  has  been  a  variance,  insert 
a  recital  in  the  deed  explaining  the  previous  error. 

This  is  not  always  necessary  under  the  strict 
rules  of  law.  Names  which  sound  alike  although  spelled 
differently  are  presumed  to  be  the  same,  that  is,  idem 
sonans. 

People  vs.  Finnegan,  5  Mich.,  146. 
Boyce  vs.  Dans,  29  Mich.,  146. 
Kinney  vs.  Barrett,  46  Mich.,  87. 
Brown  vs.  Quinland,  75  Mich.,  289. 
Detroit  vs.  Macier,  117  Mich.,  76. 

This  presumption  of  identity  does  not  follow  where 
the  Christian  and  family  names  are  used  followed  by 
the  family  name  and  similar  initials,  that  is,  it  will  not 
be  presumed  that  J.  A.  Blair  and  James  A.  Blair  are 
the  same  person. 

Bennett  vs.  Libhardt,  27  Mich.,  488. 
Where  a  father  and  son  bear   the    same   name    and 


18  DEEDS. 

there  is  nothing  to  distinguish  which  is  intended,  the 
father  is  presumptively  the  grantee. 

Dehn  vs.  Dehn,  170  Mich.,  407. 

If,  however,  a  person  is  known  by  two  names,  his 
deeds  executed  in  either  name  will  be  valid  on  proof 
of  the  facts.  A  deed  from  William  Hommell  was  held 
to  be  the  deed  of  Wendelin  Hommell. 

Hommell  vs.  Devinney,  39  Mich.,  522. 

A  variance  in  the  middle  name  or  initials  or  an  omis- 
sion of  a  middle  name  or  initials  does  not  generally 
change  the  presumption  of  identity.  The  middle  name 
is  regarded  as  of  no  consequence. 

Berbery  vs.  The  Judge,  82  Mich.,  160-165. 

The  common  law  does  not  recognize  middle  names. 
In  the  earliest  times  given  names  alone  were  used  to 
identify  persons,  with  an  added  statement  of  their  resi- 
dence or  occupation. 

For  example:  John  of  Seybrook  or  John  the  son  of 
John  of  Seybrook,  or  John,  the  miller  of  Seybrook,  or 
John,  the  smith  of  Seybrook. 

The  residence  or  occupation  thus  attached  was  the 
derivation  of  surnames.  John,  the  miller,  became  John 
Miller,  etc. 

Massachusetts,  Maine,  California  and  other  states 
have  abandoned  the  common  rule  law,  and  regard  the 
middle  name  or  initials  as  having  an  important  bear- 
ing upon  the  question  of  identity. 

At  common  law,  if  a  person  not  named  in  a  deed 
joined  in  its  execution  as  one  of  the  grantors,  the  weight 


GRANTEES.  19 

of  authority  was  that  his  interest  in  the  land,  if  any,  did 
not  pass  as  there  was  nothing  in  the  deed  to  indicate  an 
intention  of  conveying.  Such  was  the  rule  in  Michigan. 

Newton  vs.  Me  Kay,  29  Mich.,  1. 

This  doctrine  has  been  overruled  in  the  recent  case  of 
Agar  vs.  Streeter,  21  D.  L.  N.,  1227. 

When  a  woman  acquires  land  and  subsequently  mar- 
ries, it  is  customary  to  describe  her  with  her  husband's 
surname  followed  with  a  recital  of  her  former  name, 
as  "Mary  Smith,  formerly  Mary  Jones." 

GRANTEES. 

The  grantee  is  not  ordinarily  required  to  have  the 
same  capacity  as  a  grantor,  and  deeds  to  infants,  insane 
persons  and  others  who  have  no  capacity  to  make  a  con- 
tract are  generally  valid. 

As  a  general  rule  the  grantee  must  be  described  with 
certainty,  and  be  a  person  in  being  and  capable  of  hold- 
ing land.  This  rule  is  not  very  rigidly  observed.  The 
grantee  need  not  be  named  in  the  premises.  It  is  only 
necessary  that  it  can  be  determined  from  the  deed  to 
whom  it  was  intended  to  convey  the  land. 

An  illustration  of  a  liberal  construction  of  a  grant 
will  be  found  in 

Newton  vs.  Me  Kay,  29  Mich.,  1. 
For  a  deed  held  void  because  of  uncertainty  of  the 

Skinner  vs.  Grace  Church,  54  Mich.,  543. 


20  DEEDS. 

A  deed  in  the  alternative  has  been  sustained  as  a  deed 
"to  a  man  or  his  heirs." 

Ready  vs.  Kersley,  14  Mich.,  215. 

A  conveyance  to  the  estate  of  a  deceased  person  has 
been  held  void  for  uncertainty. 

Summons  vs.  Spratt  (Fla.),  1  So.,  860. 
Me  Inerney  vs.  Beck,  10  Wash.,  515. 

This  error  is  not  uncommon  and  if  you  will  consider 
the  literal  meaning  of  the  language  you  must  conclude 
that  it  describes  property  and  not  a  person. 

The  estate  of  a  deceased  person  may  be  land,  stock, 
bonds,  chattels,  or  choses  in  action. 

A  deed  to  a  person  reciting  that  he  is  an  administra- 
tor of  the  estate  of  another  person  vests  the  title  in  the 
person  named  and  not  in  the  heirs  or  creditors  of  the 
deceased  person,  and  a  conveyance  by  the  party  named 
passes  the  title. 

Little  vs.  Lesia,  5  Mich.,  119. 

Whether  a  deed  to  a  person  named,  followed  by  the 
word  "trustee,"  vests  the  title  in  the  person  or  gives 
notice  of  a  trust,  is  a  mooted  question.  I  believe  the 
better  rule  is  that  the  addition  of  the  word  "trustee"  is 
merely  descriptive  of  the  person  and  it  seems  to  me  that 
this  rule  is  sustained  by  the  case  of 

Little  vs.  Lesia. 

See  also 

Sanborn  vs.  Loud,  150  Mich.,  155. 


HUSBAND  AND  WIFE.  21 

One  of  the  leading  cases  holding  the  contrary  rule  is 
Union  Pac.  R.  R.  Co.  vs.  Durand,  95  U.  S.,  576. 

Where  two  or  more  grantees  are  named  in  a  deed,  un- 
less there  is  something  to  the  contrary  expressed  in  the 
deed,  they  take  as  tenants  in  common  in  equal  shares. 

§8826  C.  L.  Mich.,  1897. 

//  ^  *  2— 


It  may  be  expressly  declared  in  a  deed  that  the  par- 
ties shall  take  in  joint  tenancy. 

Supra. 

At  common  law  the  rule  was  reversed  and  the  gran- 
tees were  presumed  to  be  joint  tenants,  unless  declared 
to  be  tenants  in  common. 

There  is  one  statutory  exception  to  this  rule. 

Where  a  deed  runs  to  a  husband  and  wife  whether 
named  as  such  in  the  deed  or  not,  if  the  marriage  rela- 
tion actually  exists,  they  take  as  tenants  by  entirety. 

$8827,  C.  L.  Mich.,  1897. 


3 

A  devise  of  land  to  husband  and  wife  creates  the 
same  estate. 

Supra. 

Where  husband  and  wife  purchase  land  under  a  con- 
tract they  are  also  tenants  by  entireties. 

Auditor  General  vs.  Fisher,  84  Mich.,  128. 
Schleiss  vs.  Thayer,  170  Mich.,  395. 


22  DEEDS. 

Where  husband  and  wife  acquire  lands  under  the 
laws  of  descent  or  succession  the  Courts  have  held  they 
are  tenants  in  common. 

Brown  vs.  Barabro,  Wis.,  18  L.  R.  A.,  320. 

Husband  and  wife  are  tenants  by  entirety  though  the 
grant  passes  an  estate  less  than  a  fee. 

Beamer  vs.  Vinton,  55  Mich.,  559. 

Where  a  deed  runs  to  several  persons,  two  or  more 
of  whom  are  husband  and  wife,  without  specification  of 
the  particular  shares,  husband  and  wife  usually  count 
as  one  person  and  take  one  share,  viz : 

A  deed  to  John  Smith  and  Mary  Smith,  his  wife,  and 
James  Jones,  parties  of  the  second  part,  would  vest  an 
undivided  half  of  the  premises  in  Smith  and  wife  as  ten- 
ants by  entireties  and  the  remaining  undivided  half  in 
Jones. 

Deeds  to  partnerships  should  name  the  partners  in- 
dividually as  grantees. 

Generally  a  deed  to  John  Smith  &  Co.  is  held  to  vest 
the  legal  title  in  John  Smith  and  not  in  the  other  part- 
ners constituting  the  company. 

A  deed  to  Jones  and  Brown  vests  the  title  in  both. 

A  deed  to  a  partnership  under  a  trade  name,  as  *  *  The 
Bazaar,"  is  void  for  uncertainty. 

As  our  statutes  now  require  a  public  record  of  the 
names  of  the  individuals  conducting  a  business  venture 
under  an  assumed  name,  the  rule  may  be  changed  if 
the  question  should  again  come  before  the  courts. 


COEPOEATIONS.  23 

Act  101,  P.  A.   Mich.,   1907. 

It  is  a  maxim  that  "That  is  certain  which  can  be 
made  certain. ' ' 

When  we  speak  of  deeds  being  void  for  uncertainty 
or  various  defects,  we  mean  no  title  to  the  land  will  vest 
under  such  a  grant.  Usually  the  real  party  in  interest 
can  protect  his  rights  in  a  court  of  equity.  An  equitable 
title  is  not  recognized  in  the  law  courts  and  cannot  be 
introduced  in  defense  or  support  of  an  action  of  eject- 
ment. 


DEEDS  TO  AND  FROM  COEPOEATIONS. 

From  the  time  of  the  passage  of  the  statute  mortmain 
until  a  comparatively  recent  date  the  power  of  a  cor- 
poration to  hold  lands  has  been  limited  to  that  necessary 
for  the  conduct  of  its  principal  business.  In  recent 
years  the  formation  of  corporations  for  the  express  pur- 
pose of  holding  and  dealing  in  lands  has  been  author- 
ized in  most  of  the  states. 

Ordinarily  deeds  to  and  from  corporations  run  in  the 
corporate  name  followed  by  a  recital  that  the  party  is 
a  corporation  organized  under  the  laws  of  a  state 
named. 

Where  the  words  of  limitation,  that  is,  the  words, 
" heirs  and  assigns,"  would  appear  in  a  deed  between 
natural  persons,  the  word  "successors"  is  substituted 
for  the  word  "heirs,"  but  this  addition  is  not  essential 
to  create  an  estate  in  fee  in  a  corporation. 


24  DEEDS. 

Corporate  deeds  are  usually  executed  by  the  presi- 
dent and  secretary  and  attested  by  the  corporate  seal. 

However,  the  statute  under  which  the  corporation  is 
organized  often  directs  the  manner  in  which  grants  of 
land  shall  be  executed,  and  if  silent  the  by-laws  of  the 
corporation  usually  cover  the  question. 

It  is  necessary  to  examine  the  statutory  law  above  re- 
ferred to  in  each  instance  and  if  it  happens  to  be  an  old 
corporate  deed  that  is  in  question,  the  law  in  force  at 
the  time  of  its  execution. 


CONSIDERATION. 

A  study  of  decided  cases  on  the  question  of  the  neces- 
sity of  a  consideration  for  a  deed  will  result  in  many 
apparently  conflicting  statements. 

It  may  be  said  generally  that  between  the  parties  and 
their  privies  a  deed  is  valid  without  a  consideration. 
Such  is  the  Michigan  rule. 

Gale  vs.  Gould,  40  Mich.,  515. 

Where  the  rights  of  third  parties  are  involved  such 
as  the  creditors  of  a  grantor,  a  deed  without  considera- 
tion will  be  set  aside,  and  in  such  a  case  the  considera- 
tion must  ordinarily  be  a  valuable  consideration  if  the 
deed  is  to  be  sustained. 

The  recital  of  a  consideration  in  a  deed  is  not  suffi- 
cient evidence  when  the  validity  of  the  grant  is  attacked 
by  third  persons. 

Ripley  vs.  Seligman,  88  Mich.,  177. 


CONSIDERATION.  25 

The  true  consideration  for  a  deed  can  always  be 
shown  by  parol  evidence. 

This  may  appear  to  be  a  violation  of  the  rule  that  a 
written  contract  cannot  be  varied  by  parol  evidence, 
but  technically,  the  statement  of  the  consideration  in  a 
deed  is  not  a  part  of  the  contract,  it  is  not  "an  agree- 
ment to  do  or  not  to  do  a  particular  thing. ' ' 

Deeds  generally  contain  an  acknowledgment  of  re- 
ceipt of  the  consideration.  This  practice  originated  to 
prevent  a  trust  resulting  under  the  old  common  law 
rules. 

Resulting  trusts  are  now  abolished  by  statute  iu 
Michigan. 

§8835  Comp.  Laws  Mich.,  1897. 

c  z.  /*<i/,  /  ?/*-       '/&  7  / 

Most  deeds,  as  drawn  at  the  present  time,  recite  as 
consideration,  "The  sum  of  one  dollar  and  other  valu- 
able consideration,"  particularly  in  the  City  of  Detroit. 

A  few  years  ago  an  act  was  passed  by  the  legislature 
requiring  that  every  deed  of  land  left  with  the  Wayne 
County  Register's  office  for  record  be  sent  to  the  As- 
sessor's office  before  being  returned  to  the  owner.  The 
Assessor's  interest  seemed  to  have  been  to  note  the  re- 
cited consideration  in  the  deed  upon  the  field  book  for 
the  following  year's  assessment. 

Immediately  afterwards  the  practice  of  reciting  $1.00 
in  deeds  arose,  and  it  prevails  in  some  ninety  per  cent 
of  the  instruments  recorded  from  day  to  day. 

It  is  said  that  a  law  which  does  not  have  the  support 


26  DEEDS. 

of  public  opinion  is  rarely  enforced.  It  is  my  observa- 
tion that  tax  laws  which  are  not  burdensome  are  gen- 
erally observed,  while  those  which  are  confiscatory  are 
evaded.  Few,  if  any,  find  fault  with  the  present  mort- 
gage tax  law  or  federal  income  tax  law.  In  each  in- 
stance the  amount  demanded  is  within  the  means  of  the 
person  affected. 

OPERATIVE  WORDS. 

The  operative  words  of  a  deed  constitute  that  part  of 
the  premises  which  manifest  an  intention  to  grant  or 
transfer  something. 

The  words  ordinarily  used  are : 

Grant,  bargain,  sell,  remise,  release,  alien  and  con- 
firm. 

These  words  are  borrowed  from  the  technical  words 
of  the  old  forms  of  deeds. 

The  operative  words  of  the  various  forms  were : 

Feoffment — "Give,  grant  and  enfeoff." 

Grant — "Give  and  grant." 

Lease — "Demise,  grant  and  to  farm  let." 

Exchange — *  *  Exchange. ' ' 

Release — "Remise,  release  and  forever  quit- 
claim." 

Confirmation — "Give,  grant,  ratify,  approve 
and  confirm." 

Surrender — "Surrender,  grant  and  yield  up." 

Bargain  and  sale — "Bargain  and  sell  'or'  give, 
grant,  bargain  and  sell." 


OPERATIVE  WORDS.  27 

Covenant  to  stand  seized — "  Covenant  to  stand 
seized  to  the  use  of." 

The  practice  of  combining  the  operative  words  of  the 
various  kinds  of  deeds  arose  through  precaution  of  the 
ancient  conveyancers.  Their  idea  was  that  if  the  instru- 
ment would  not  operate  as  one  kind  of  a  conveyance  it 
would  as  another. 

Our  predecessors  endeavored  to  make  the  law  an  ex- 
act science,  while  modern  courts  seem  to  attempt  to  do 
justice  in  individual  cases. 

The  general  rule  in  most  of  the  states  at  the  present 
time  is  that  if  the  whole  instrument  shows  an  intent  to 
pass  title  it  will  be  so  construed,  if  practicable,  to  have 
that  effect. 

Brewton  vs.  Watson,  67  Ala.,  121. 

Johnson  vs.  Banlock,  38  III.,  611. 

Negaunee  Iron  Co.  vs.  Iron  Cliff  Co.,  134  M.,  264. 

Sharp  vs..  Sharp,  148  Mich.,  278. 

The  word  "grant"  was  held  sufficient  to  create  a 
feoffment,  grant,  gift,  lease,  release,  confirmation  or 
surrender  in  the  time  of  Coke. 

Coke  Litt.,  301  b. 

It  is  and  has  been  customary  for  time  immemorial  to 
insert  words  of  limitation  in  the  premises  after  the 
operative  words,  that  is,  deeds  usually  read  grant,  bar- 
gain, sell,  etc.,  to  the  parties  of  the  second  part,  his 
heirs  and  assigns. 

The  word  " heirs"  is  a  word  of  limitation  and  in  ef- 
fect means  that  an  estate  in  fee  has  been  conveyed. 


28  DEEDS. 

Under  the  common  law  and  I  believe  in  all  the  states 
this  rule  prevails,  except  where  modified  by  statute.  At 
common  law  and  in  many  of  the  states  this  rule  was  in- 
flexible. No  matter  what  words  were  used  or  how  well 
the  intention  may  have  been  expressed  to  create  a  fee 
simple,  if  the  word  " heirs"  was  not  used  in  connection 
with  the  grant  to  the  grantee  somewhere  in  the  deed, 
only  a  life  estate  passed. 

In  other  states  word.s  equivalent  to  the  word  heirs 
have  been  held  to  pass  a  fee. 

In  Michigan  since  Sept.  10,  1881,  a  deed  conveys  all 
the  estate  the  grantor  has  unless  there  is  a  contrary  in- 
tention, reservation  or  limitation. 

§9016  Comp.  Laws,  Mich.,  1897. 

e  A  ifo*&  /?/j~      »7f 

DESCEIPTION. 

The  purpose  of  the  description  in  a  deed  is  to  indicate 
what  particular  land  the  grantor  intends  to  convey  to 
the  grantee  and  afford  means  for  its  identification. 

In  England  and  in  the  older  states  of  this  country 
there  was  no  general  survey  and  lands  were  generally 
described  by  reference  to  the  name  by  which  it  was  com- 
monly known,  as  "The  Manor  of  Dale,"  or  a  part  of 
some  particular  tract  or  by  courses  and  distances  from 
a  particular  starting  point  identified  by  some  well 
known  physical  land  mark  or  by  metes  and  bounds. 

After  the  federal  union  was  established  in  our  coun- 
try and  the  territorial  limits  of  the  original  states  were 
fixed,  the  remaining  lands  were  considered  the  property 


DESCRIPTION.  29 

of  the  United  States  and  known  as  the  public  domain 
and  included  all  the  lands  north  of  the  Ohio  and  west  of 
the  Mississippi  Rivers  not  owned  by  individuals  prior 
to  the  cession  to  the  United  States  and  some  portions 
of  Florida,  Alabama,  Mississippi  and  Tennessee. 

The  public  domain  was  looked  upon  as  a  source  of 
revenue  and  under  the  laws  enacted  by  Congress  was 
opened  to  private  entry  to  cash  purchasers,  homestead 
entries  and  entries  under  military  warrants,  the  latter 
being  private  grants  or  rewards  for  military  service  or 
financial  aid  rendered  in  the  war  for  independence. 

Some  systematic  method  of  describing  the  lands  was 
necessary  and  the  present  system  of  surveying,  which 
I  believe  was  invented  by  Gen.  Eufus  Putnam,  a  Revolu- 
tionary officer,  was  introduced  in  1785  or  1786. 

This  system  established  a  series  of  arbitrary  lines 
running  north  and  south  termed  Principal  Meridians, 
with  accompanying  east  and  west  lines  termed  Base 
Lines.  The  former  are  fixed  with  reference  to  certain 
Meridians  of  Longitude  established  or  located  through 
and  by  astronomical  observation  and  the  latter  estab- 
lished in  the  same  manner  with  reference  to  Parallels 
of  Latitude. 

There  are  twenty-four  Principal  Meridians  in  this 
country,  each  having  an  accompanying  Base  Line.  The 
meridian  upon  which  the  Michigan  survey  is  based  is 
known  as  the  Michigan  Meridian  and  is  in  longitude  84 
degrees  19  minutes,  9  seconds  west  from  Greenwich, 
running  through  the  state  near  Lansing;  the  accom- 
panying Base  Line  is  the  line  between  Wayne  and  Oak- 
land Counties.  The  surveys  in  some  of  the  states  are 


30  DEEDS. 

governed  by  more  than  one  meridian.  Lines  were  run 
parallel  to  the  meridians  and  base  lines  six  miles  apart 
dividing  the  territory  into  townships.  The  townships 
are  designated  as  north  or  south  of  the  base  lines  and 
east  or  west  of  the  meridian.  As,  for  example,  Town  6 
North  Range  6  East,  means  a  township  the  southerly 
line  of  which  is  30  miles  north  of  the  base  line  and 
whose  westerly  line  is  thirty  miles  east  of  the  meridian. 
Towns  were  again  divided  into  squares  of  one  mile  each 
by  running  similar  lines  which  were  called  sections,  and 
the  sections  again  cut  by  lines  running  north  and  south 
and  east  and  west  dividing  them  into  substantially  equal 
quarters,  known  as  Quarter  Sections.  The  sections  were 
numbered  from  one  to  thirty-six,  always  starting  in  the 
northeast  corner  of  the  town  and  numbering  to  the  left 
until  the  town  line  was  reached,  dropping  down  to  the 
next  tier  of  sections  and  numbering  to  the  east  until  the 
east  town  line  was  again  reached  and  continuing  the 
process  until  each  section  was  numbered. 

In  the  government  survey,  stakes  or  land  marks  were 
set  at  all  town  and  section  corners  and  at  all  the  start- 
ing points  of  lines  cutting  the  sections  into  quarters. 
The  stakes  at  the  township  corner  are  termed  "Town 
Corner";  those  at  the  section  corners  termed  "Section 
Corners."  The  stakes  at  the  commencement  and  ter- 
mination of  the  lines  dividing  the  section  into  quarters 
are  termed  "Quarter  Posts,"  the  lines  dividing  the  sec- 
tions are  termed  "Quarter  Lines."  We  speak  of  the 
west  quarter  post  of  a  section  meaning  the  stake  set  in 
the  west  line  of  the  section  midway  between  its  north- 
west and  southwest  corner  and  refer  to  the  other  quar- 
ter posts  by  a  similar  designation,  and  the  lines  con- 
necting the  quarter  posts  as  the  north  and  south  quarter 
lines  and  east  and  west  quarter  lines. 


DESIGNATION  OF  ADJACENT  LAND.  31 

In  the  actual  disposition  of  the  land  the  quarter  sec- 
tions were  again  divided  by  two  intersecting  lines  divid- 
ing them  into  four  quarters.  These  lines  are  often 
termed  "eighth  lines."  The  quarters  of  the  sections 
are  referred  to  as  N.  E.  1/4  or  N.  W.  ^4,  etc.,  with  refer- 
ence to  their  location  in  the  section  and  the  quarters  of 
the  original  quarter  sections  in  like  manner  as  N.  W. 
14  of  S.  W.  14,  etc. 

No  stakes  were  set  in  the  original  survey  of  the  sec- 
tions, except  the  four  corners  and  four  quarter  posts. 

The  standard  section  corner  is  a  post  four  feet  long, 
four  inches  square,  set  two  feet  in  the  ground. 

The  standard  quarter  post  is  three  feet  long,  three 
inches  square,  set  one  foot  in  the  ground. 

The  field  notes  of  the  survey  gave  the  course  and  dis- 
tances from  the  section  corners  to  adjacent  land  marks, 
usually  trees  in  this  locality,  that  the  corner  might  be 
located  if  the  post  was  destroyed. 

Owing  to  the  convergence  of  meridians  the  section 
lines  are  not  exactly  parallel  and  the  sections  are  not 
all  of  equal  area.  This  is  all  taken  care  of  in  the  sec- 
tions in  the  north  and  west  tiers  in  each  town  and  they 
will  be  found  short  in  many  instances. 

Where  the  land  surveyed  bordered  upon  the  Great 
Lakes  and  larger  inland  lakes  these  designations  were 
usually  abandoned  in  designating  the  adjacent  land,  and 
the  land  fronting  upon  the  water  designated  as  a  "lot," 
as  Lot  2,  Section  34,  T.  3.  N.  B.  14  E.  These  lots  are 
often  referred  to  as  "Government  Lots." 


32  DEEDS. 

There  is  another  series  of  posts  and  lines  established 
by  the  original  survey  known  as  meander  lines  and 
meander  posts.  When  the  land  bordered  upon  water,  a 
line  was  often  run  substantially  parallel  with  the  wat- 
er's edge,  though  not  coincident  with  the  water's  edge, 
and  posts  were  set  at  the  angles  in  this  line.  These 
lines  were  not  boundaries  and  were  run  for  the  purpose 
of  determining  the  area  of  the  land  in  the  particular 
tract. 

When  the  subdivisions  of  this  government  survey  are 
divided  into  smaller  parcels  the  boundaries  are  meas 
ured  and  their  directions  given  with  reference  to  the 
points  of  the  magnetic  compass,  resulting  in  a  descrip- 
tion by   "courses   and  distances." 

The  course  of  a  boundary  line  is  determined  by  meas- 
uring the  angle  made  by  the  intersection  of  such  line 
with  a  line  running  due  north  or  south,  the  latter  being 
found  at  any  desired  point  with  a  compass. 

To  illustrate,  suppose  you  placed  a  compass  over  the 
center  line  of  Woodward  Avenue  and  were  looking  to- 
ward Pontiac,  the  north  end  of  the  needle  would  point 
to  the  right  or  east  of  the  line  of  Woodward  Avenue. 
If  you  count  the  degrees  upon  the  dial  of  the  compass 
from  the  north  point  of  the  compass  to  a  line  coincident 
with  Woodward  Avenue,  you  would  go  west  from  the 
needle  point  26°  and  the  course  of  Woodward  avenue  if 
following  it  toward  Pontiac  would  be  described  as 
North  26°  West. 

If  you  turn  about  face  and  repeat  the  operation  the 
south  point  of  the  needle  would  be  to  the  west  of  the 
line  of  Woodward  and  counting  the  degrees  from  it  to 


PRIVATE  CLAIMS.  33 

the  line  coincident  with  Woodward  you  would  go  to 
the  east  26°  and  the  course  of  the  avenue  going  toward 
the  river  would  be  described  as  South  26°  East. 

An  engineer  surveying  the  block  between  Woodward, 
Elizabeth,  Witherell  and  Adams  Ave.,  starting  at  Wood- 
ward and  Adams  Aves.,  going  toward  Pontiac,  would 
go  north  26°  W.  to  Elizabeth  Street,  turning  a  right 
angle  toward  the  east;  following  Elizabeth  Street  his 
course  would  be  N.  64°  East ;  turning  south  down  With- 
erell Sreet  his  course  would  be  S.  26°  E. ;  turning  west 
along  Adams  Ave.  his  course  would  be  S.  64°  W. 

There  is  still  another  subdivision  of  lands  estab- 
lished by  the  government  surveyors  in  this  locality 
termed  Private  Claims.  This  term  is  used  to  distin- 
guish the  land  from  the  public  domain.  The  American 
government  came  into  possession  of  the  lands  known 
as  the  Northwest  Territory  by  cession  from  Virginia 
and  other  of  the  original  colonies.  The  deed  of  cession 
from  Virginia  was  conditioned  that  the  rights  of  cer- 
tain inhabitants  in  possession  be  recognized  by  the  Fed- 
eral Government.  Acts  of  Congress  were  passed  for 
the  settlement  and  adjustment  of  the  land  titles.  The 
government  recognized  the  claim  of  title  to  land  by 
those  who  had  been  in  actual  possession  and  made  im- 
provements during  the  French  and  English  rule,  and 
were  in  actual  possession  July  1,  1796,  but  required 
each  claim  to  be  proved  before  a  tribunal,  which  in 
Michigan  was  known  as  the  Land  Board,  consisting  of 
the  Register  and  Receiver  of  the  Land  Office  and  the 
Secretary  of  the  Northwest  Territory,  and  when  so 
proved  that  the  land  be  surveyed  by  the  government 
surveyor  and  a  plat  of  the  survey  returned  to  the  land 


34  DEEDS 

office.    The  claim  was  then  confirmed  by  a  patent  issued 
by  the  general  government. 

The  patents  of  Private  Claims  are  technically  con- 
firmations, not  grants.  They  do  not  convey  title.  The 
United  States  never  had  title. 

Lang  dean  vs.  Hanes,  21  Wai.  (U.  $.),  521. 

The  early  French  and  English  settlers  occupied  only 
lands  fronting  upon  the  rivers,  lakes  and  streams,  the 
water  being  the  only  highway,  and  they  were  in  posses- 
sion of  narrow  strips  undoubtedly  that  their  habitations 
might  be  close  together  to  afford  both  society  and  pro- 
tection against  the  Indians. 

Under  the  land  laws  the  claimants  were  permitted  to 
hold  the  frontage  on  the  water  of  which  they  had  pos- 
session, with  a  depth  of  40  arpents,  but  not  to  exceed 
640  acres.  Later  another  Act  of  Congress  was  passed 
permitting  the  claimant  to  extend  back  an  additional 
forty  arpents  if  their  original  holding  did  not  exceed 
640  acres.  From  these  acts  we  derive  the  term  front 
and  rear  concessions. 

The  rear  line  of  these  claims  in  the  City  of  Detroit 
is  Me  Graw  Avenue  on  the  west  side  and  Harper  Avenue 
on  the  east  side. 

Private  Claims  will  be  found  in  this  vicinity  upon 
the  Great  Lakes  and  connecting  waters  and  upon  most 
of  the  nearby  rivers,  as  the  Huron  and  Clinton,  and 
about  Mackinaw  and  the  Soo. 

The  arpent  was  a  French  acre  and  as  used  in 
this  locality  was  equal  to  about  192.24  feet.  Remember 


LOCAL  DESCBIPTION.  35 

this  distance,  as  you  will  find  it  necessary  to  convert  this 
measure  into  English  chains  and  feet  from  time  to  time. 
You  will  find  an  extended  report  concerning  it  made  by 
Judge  Woodward  to  the  Washington  authorities. 

Vol.  XIV.,  Am.  St.  Papers,  p.  264. 

The  arpent  was  the  Royal  Paris  Acre  and  it  is  inter- 
esting to  note  that  the  so-called  English  acre,  being  a 
little  over  208.71  feet,  is  also  a  French  measure,  being 
the  Norman  acre,  which  was  introduced  into  England 
after  the  Conquest. 

We  also  have  tracts  of  land  locally  known  as  the 
Governor  and  Judges'  Plan,  Park  Lots,  the  Ten  Thou- 
sand Acre  Tract,  the  Military  Reserve  (Reservation), 
the  Ship  Yard  Tract  and  the  Arsenal  Grounds. 

Their  descriptions  are  historical  and  are  only  of  local 
interest. 

The  original  City  of  Detroit  was  destroyed  by  fire  in 
1805.  The  old  lines  and  land  marks  were  obliterated. 
Congress  authorized  the  Governor  and  Judges  to  lay 
out  a  new  town  and  10,000  acres  additional  and  to 
grant  every  inhabitant  a  lot  of  5,000  square  feet  in  area 
in  the  town,  using  the  10,000  acres  to  supply  deficien- 
cies, and  to  sell  the  surplus  and  use  the  proceeds  to 
construct  a  court  house  and  a  jail.  Following  this  au- 
thority the  Governor  and  Judges  plan  was  laid  out  ap- 
proximately between  the  river,  Adams  Avenue,  Cass 
Avenue  and  Randolph  Street.  The  land  either  side  of 
Woodward  between  the  Private  Claims  known  as  the 
Cass  or  Macomb  Farm  and  the  Brush  or  Askin  Farm 
and  the  Boulevard  was  cut  into  lots  and  a  rectangular 
tract  containing  some  9,000  odd  acres  laid  out  north  of 
the  Boulevard.  The  land  along  Woodward  Avenue  from 


36  DEEDS. 

Adams  Avenue  to  the  Boulevard  is  termed  "Park  Lots," 
and  the  tract  above  the  Boulevard  the  Ten  Thousand 
Acre  Tract,  though  the  Park  Lots  are,  strictly  speaking, 
a  part  of  the  10,000  acres  authorized  to  be  laid  out  un- 
der the  legislation  mentioned. 

The  Shipyard  Tract  lies  on  the  River  Rouge,  the  Mili- 
tary Reservation  between  Griswold  Street,  Cass  Ave- 
nue, Michigan  Avenue  and  the  river,  and  the  Arsenal 
Ground  at  Dearborn. 

In  actual  conveyancing  it  will  be  well  to  always  use 
descriptions  that  will  trace  back  to  the  survey  and  al- 
ways avoid  local  landmarks  which  are  in  no  way  con- 
nected with  the  survey.  The  latter  may  disappear  and 
cannot  be  connected  with  the  record  or  paper  title  to 
the  land  except  through  a  survey. 

There  is  a  practice,  more  or  less  common,  of  describ- 
ing land  as  a  piece  of  land  on  a  certain  section  or  claim 
bounded  north  by  the  lands  of  one  owner  and  upon  the 
other  sides  by  the  lands  of  other  owners.  When  it  be- 
comes necessary  to  examine  the  title  to  lands  thus  de- 
scribed, the  title  to  the  surrounding  lands  must  also  be 
examined  in  order  to  determine  with  any  certainty  the 
land  included  in  the  description.  This  has  been  quite 
correctly  termed  the  "lazy  man's  description,"  and  it 
may  be  added  that  it  is  no  lazy  man's  task  to  follow  it. 

The  general  rule  is  that  the  description  of  the  land 
in  the  conveyance  must  be  certain  and  definite;  that  is, 
the  language  used  must  point  out  the  means  of  identify- 
ing and  distinguishing  the  particular  land  from  all 
other  lands. 

Extrinsic  evidence  may  be  resorted  to  in  applying  the 


COUKSES  AND  DISTANCES.  37 

description  to  the  ground  but  not  to  vary  or  supply  the 
description. 

Rix  vs.  Smith,  145  Mich.,  203. 

If  from  the  language  used,  aided  by  local  inquiries 
and  other  records,  surveys  or  documents  referred  to  in 
the  deed,  the  land  can  be  located  it  is  sufficient. 

Persinger  vs.  Jubb,  52  Mich.,  304. 

By  local  inquiries  we  have  reference  to  local  physical 
landmarks,  such  as  highways,  water  courses  and  other 
natural  and  artificial  monuments,  or  to  a  tract  of  land 
generally  known  in  a  particular  locality  by  some  par- 
ticular name. 

By  other  records  we  mean  plats,  surveys  and  other 
conveyances  or  records  referred  to  in  the  deed. 

Uncertainty  arises  in  several  ways.  In  conveying  a 
portion  of  a  large  tract,  frequently  there  is  no  manifes- 
tation of  what  part  of  the  tract  is  intended.  For  exam- 
ple: A  part  of  out  lot  2,  L.  Beaubien  Farm,  containing 
one  acre,  would  be  indefinite,  while  the  north  one  acre 
of  Lot  2,  L.  Beaubien  Farm  would  be  definite  and  would 
mean  a  rectangular  piece  off  the  north  end  of  the  lot 
having  an  area  of  one  acre. 

Descriptions  by  courses  and  distances  are  indefinite 
if  the  starting  point  is  not  fixed  with  certainty.  If,  how- 
ever, the  starting  point  is  indefinite  and  later  on  in  the 
description  a  monument  is  described,  the  description 
will  be  certain. 

Taber  vs.  Shattuck,  55  Mich.,  371-373. 


38  DEEDS. 

For  instance,  a  description  commencing  at  a  stake  in 
the  east  line  of  Woodward  Avenue,  run  thence  N.  26* 
W.  100  feet;  thence  N.  64°  E.  200  ft.;  thence  S.  26°  E. 
100  ft.;  thence  S.  64°  W.  200  ft.  to  beginning,  would  be 
indefinite.  If  the  description  reads  in  the  same  way  and 
had  the  words  "to  the  N.  W.  corner  of  Park  Lot  57" 
inserted  after  the  phrase  N.  26°  W.  100  ft.,  the  descrip- 
tion would  be  definite.  The  designated  corner  of  the 
Park  Lot  could  be  taken  as  a  starting  point  and  the 
land  located. 

General  descriptions  have  been  held  sufficient,  as  all 
the  grantor's  land  in  a  certain  town,  county  and  state, 
or  the  descriptive  name  of  a  tract  by  which  it  is  gener- 
ally known,  as  *  *  Schoolcraf  t  Store  property. ' ' 

Francis  vs.  Barry,  69  Mich.,  31. 

The  failure  to  designate  the  state  and  county  where 
lands  are  described  as  section,  town  and  range  is  not 
fatal  to  a  description  where  possession  of  the  land  in- 
tended to  be  conveyed  was  taken  under  it. 

Russell  vs.  Sweezne,  22  Mich.,  235. 
Marr  vs.  Benedict,  98  Mich.,  260. 

A  grant  of  all  the  land  to  which  a  person  has  any 
right,  title  or  interest  has  been  held  sufficiently  definite. 

Austin  vs.  Dolb,  101  Mich.,  292,  and  cases  cited. 
Huron  Land   Co.   vs.   Robarge,   128  Mich.,   686. 

CONSTRUCTION  AND  INTERPRETATION. 

There  are  certain  rules  for  the  construction  of  deeds, 
viz: 


INTENT  OF  PABTEES.  39 

1.  The  object  of  construing  a  deed  is  to  ascertain  the 
intention  of  the  parties. 

M on fort  vs.  Stevens,  68  Mich.,  61. 

2.  They  are  to  be  construed  with  reference  to  the 
facts  which  existed  at  the  time  of  delivery. 

Me  Connell  vs.  Rathbun,  46  Mich.,  303. 
Hoffman  vs.  Port  Huron,  102  Mich.,  437. 

3.  The  acts  of  the  parties  immediately  after  execu- 
tion showing  their  understanding  are  to  be  considered. 

Monfort  vs.  Stevens,  68  Mich.,  61. 

4.  A  deed  must  be  so  construed,  if  possible,  that  no 
part  shall  be  rejected. 

Jones  vs.  Pashby,  62  Mich.,  622. 

5.  When  a  general  description  is  followed  by  a  more 
particular  description  the  latter  expresses  the  intents 
and  controls. 

Nichols  vs.  Furniture  Co.,  100  Mich.,  230. 

6.  Lands,  marks  and  monuments  will  control  courses 
and  distances. 

Howell  vs.  Merrill,  30  Mich.,  382. 
Diehl  vs.  Zanger,  39  Mich.,  601. 

7.  Permanent  natural  monuments   control   artificial 
monuments. 

8.  Where  a  general  description    is    followed    by    a 
clause  stating  the  intent  of  the  parties  as  to  the  prem- 
ises conveyed  such  clause  will  control  the  general  de- 
scription. 

Flummer  vs.  Gould,  92  Mich.,  1. 


40  DEEDS. 

9.  The  language  of  the  deed  is  to  be  taken  most 
strongly  against  the  grantor. 

Bolio  vs.  Marvin,  130  Mich.,  82. 

These  rules  are  only  an  aid  to  construction.  They  are 
not  inflexible.  The  true  intent  of  the  parties  gathered 
from  the  whole  instrument,  considered  in  connection 
with  the  facts  existing  at  the  time  of  its  execution  and 
delivery  and  the  acts  of  the  parties  giving  it  a  prac- 
tical construction,  will,  if  the  intention  thus  determined 
be  lawful,  overcome  all  arbitrary  rules. 

Negaunee  Iron  Co.  vs.  Iron  Cliffs  Co.,  134  Mich.,  264. 

In  seeking  the  intent  of  the  parties  Judge  Cooley  con- 
strued the  word  "to"  when  used  in  the  phrase  " run- 
ning to  the  rear  line  of  the  claim,"  as  running  "  to  ward" 
the  rear  line. 

Moran  vs.  Legatte,  54  Mich.,  83. 

What  constitutes  a  boundary  is  usually  a  question 
of  fact. 

Jones  vs.  Pashby,  62  Mich.,  622. 

Apparently  opposed  to  some  of  the  foregoing  rules  is 
the  rule  expressed  by  the  maxim,  "Falsa  demonstratio 
non  nocet,"  i.  e.,  "A  false  description  does  not  vitiate 
when  a  description  of  the  essential  matter  remains." 
Tuthill  vs.  Kratz,  163  Midi.,  618. 
Anderson  vs.  Boughman,  7  Mich.,  69. 

Where  a  description  refers  to  a  map  or  plat,  such 
map  or  plat  is  to  be  considered  as  much  a  part  of  the 
deed  as  if  fully  incorporated  in  the  instrument. 

Nichols    vs.    New    England    Furniture    Co.,    100 
Mich.,  230. 


INCLUSIVE  IN  THE  GRANT.  41 

A  reference  to  another  deed  or  contract  has  a  like 
effect. 

The  fact  that  the  plat  is  not  acknowledged  or  has  not 
been  recorded  will  not  defeat  the  grant,  though  the  deed 
recites  that  it  is  of  record. 

Johnstone  vs.  Scott,  11  Mich.,  232. 
Wiley  vs.  Lovely,  46  Mich.,  83. 

I  have  endeavored  to  briefly  state  the  technical  rules 
as  to  the  interpretation  of  deeds  and  their  essential  for- 
mal parts,  but  it  may  be  observed  that  the  present  tend- 
ency of  the  courts  is  to  look  to  these  rules  only  as  a 
guide  in  an  honest  endeavor  to  arrive  at  the  true  inten- 
tion of  the  parties,  and  to  administer  justice  in  the  indi- 
vidual case. 

This  condition  can  be  largely  attributed  to  the  lack 
of  skill  and  want  of  knowledge  on  the  part  of  those  as- 
suming the  preparation  of  conveyances. 

WHAT  IS  INCLUDED  IN  THE  DESCRIPTION. 

Grants  of  land  abutting  upon  a  street  or  highway  gen- 
erally carry  title  to  the  center  of  the  highway  in  the 
absence  of  a  reservation. 

Where  a  land  owner  lays  out  a  street  or  highway 
upon  one  side  of  his  land  and  grants  a  parcel  adjoin- 
ing, the  grant  carries  the  entire  street. 

Haberman  vs.  Baker,  28  N.  E.,  370  (N.  Y.). 

There  is  no  such  presumption  in  a  conveyance  by  a 
city  where  the  city  holds  the  fee  of  a  street. 

Graham  vs.  Stern,  61  N.  E.,  691  (N.  Y.). 


42  DEEDS. 

Where  the  grantor  has  rights  beyond  the  margin  of 
the  street  this  rule  does  not  apply. 

Banks  vs.  Ogden,  2  Wall.,  57. 

Where  land  is  described  as  bordering  upon  water, 
such  as  a  lake  or  stream,  the  rule  is  that  the  grant  car- 
ries all  the  title  the  grantor  has  to  the  submerged  land. 

In  Michigan  the  courts  hold  that  the  title  to  the  bed 
of  the  Great  Lakes  is  in  the  State  in  trust  for  the  peo- 
ple. 

Ainsworth  vs.  Hunting  Club,  159  Mich.,  61. 
State  vs.  Venice  American  Land  Co.,  160  Mich., 
680. 

Adverse  possession  will  not  run  against  the  state. 
Supra. 

In  Michigan  the  riparian  owner  of  land  bordering 
upon  a  river  has  title  to  the  middle  of  the  main  channel 
or  thread  of  the  stream  whether  navigable  or  not  navi- 
gable. 

Hall  vs.  Alford,  114  Mich.,  165. 
Lorman  vs.  Benson,  8  Mich.,  18. 
Ryan  vs.  Brown,  18  Mich.,  196. 

This  rule  I  believe  obtains  in  all  the  states  as  to  the 
non-navigable  streams. 

As  to  navigable  streams  some  states  hold  the  same 
rule,  others  hold  that  private  ownership  extends  to  low 
water  mark  and  others  that  it  extends  to  high  water 
mark. 

The  rule  governing  private  ownership  in  the  beds  of 


ASSIGNMENT  OF  EASEMENT.  43 

small  inland  lakes  is  not  settled  nor  uniform  in  the 
states  nor  in  Michigan.  The  Court  has  enunciated  the 
dictum  : 

"No  fixed  rule  ever  has  been  or  ever  can  be 
laid  down  for  the  division  of  the  territory  cov- 
ered by  inland  lakes." 

The  section  line  rule  is  laid  down  in 

Clute  vs.  Fisher,  65  Mich.,  48, 
but  repudiated  in 

Grand  Rapids  Ice  Co.,  102  Mich.,  227. 

The  rules  governing  riparian  rights  seem  to  have 
been  observed  in 

Lincoln  vs.  Davis,  53  Mich.,  390. 

Grand  Rapids  Ice  Co.  vs.  Ice  Co.,  102  Mich.,  227. 

The  rule  that  private  ownership  extends  to  the  center 
seems  to  have  prevailed  in 

Weber  vs.  Pere  Marquette  Boom  Co.,  62  Mich., 
626. 

Private   ownership  was  recognized  and  the   dictum 
stated  advanced  in 

Pittsburg  Iron  Co.  vs.  Lake  Superior  Iron  Co., 
118  Mich.,  109. 

Easements  appurtenant  to  the  land  will  pass  without 
specific  mention. 

Walz  vs.  Walz,  101  Mich.,  167. 

Easements  which  are  not  appurtenant  are  unassign- 
able and  will  not  pass  if  they  are  mentioned. 


s 


n 


44  DEEDS. 

Riparian  rights  pass  with  the  deed  without  specific 
mention,  unless  they  are  specifically  reserved. 

Grand  Rapids  Ice  &  Coal  Co.  vs.  South  Grand 
Rapids  Ice  &  Coal  Co.,  102  Mich.,  227. 

Riparian  rights  in  the  submerged  lands  of  streams 
are  bounded  by  lines  running  at  right  angles  to  the 
thread  of  the  stream. 

A.  N.  Campau  Realty  Co.  vs.  Detroit,  102  Mich.,  243. 

This  rule  does  not  apply  to  the  Great  Lakes. 

Blodgett   &   Davis  Lumber   Co.   vs.   Peters,   87 
Mich.,  498. 

Meander  lines  are  not  ordinarily  boundaries. 

Twogood  vs.  Hoyt,  42  Mich.,  609. 
Palmer  vs.  Dodd,  64  Mich.,  474. 
Clute  vs.  Fisher,  65  Mich.,  48. 
Arnold  vs.  Boelchel. 

Where  a  wife  joins  in  the  execution  of  a  deed  with 
her  husband  and  individually  owns  a  part  of  the  land 
described,  such  deed  will  convey  her  entire  interest,  both 
her  dower  and  her  fee,  or  other  interest,  without  recital 
of  any  kind. 

Eewmiller  vs.  Hathaway,  60  Mich.,  391-4. 

The  fact  that  she  does  not  join  in  the  covenants  does 
not  change  the  rule. 

Clow  vs.  Plummer,  85  Mich.,  550-552-553. 


HABENDUM.  45 

HABENDUM. 

At  common  law  the  habendum  contained  the  limita- 
tions of  the  estate  granted,  that  is,  it  determined  the 
duration,  whether  in  fee  for  life  or  in  tail. 

In  modern  deeds  the  words  of  limitation  are  usually 
contained  in  the  premises  following  the  operative 
words,  but  the  habendum  is  retained  and  amounts  to  a 
repetition  of  the  limitations.  The  result  is  that  the 
habendum  only  comes  in  question  when  it  conflicts  with 
the  premises. 

Michigan  has  adhered  to  the  common  law  rule  that 
the  estate  limited  in  the  premises  cannot  be  abridged  by 
the  habendum. 

Smith  vs.  Smith,  71  Mich.,  633. 

But  in  following  the  rule  that  the  intention  of  the 
parties  is  to  be  determined  from  the  whole  instrument 
and  carried  out,  the  Court  has  held  that  a  repugnant 
habendum  will  control  the  granting  clause  in  the  prem- 
ises when  such  is  the  intention  of  the  parties. 

Wilson  vs.  Ferry,  130  Mich.,  73. 

As  has  been  stated,  the  words  of  inheritance  " heirs" 
is  in  the  absence  of  statute  essential  to  create  an  estate 
in  fee.  There  are  exceptions  to  this  rule : 

(a)  When  the  grant  is  made  to  a  trustee  and 
an  estate  in  fee  is  necessary  for  the  purposes  of 
the  trust,  a  fee  will  pass  without  words  of  inheri- 
tance. 

(b)  The  word  *  'heirs"  is  not  appropriate  in  a 
grant  to  a  corporation,  and  while  the  word  "sue- 


46  DEEDS. 

cessors"  is  usually  substituted,  it  is  not  essen- 
tial to  pass  a  fee. 
Delhi  School  Dist.   vs.   Everett,   52   Mich.,   314, 

(c)  Words  of  inheritance  are  not  essential  to 
an  executory  contract  to  convey. 

(d)  I  believe  words  of  inheritance  were  never 
essential  to  a  devise  in  a  will. 


TENENDUM. 

The  tenendum  was  formerly  used  to  define  the  kind 
of  tenure  under  which  and  of  whom,  whether  the  lord 
or  the  grantor,  the  land  was  held  and  was  coupled  with 
the  habendum.  All  that  remains  of  it  in  modern  con- 
veyances is  the  words,  "To  Have  and  to  Hold,"  which 
apply  to  the  habendum  as  well. 

EEDDENDUM. 

The  reddendum  at  common  law  contained  the  reserva- 
tion of  something  new  and  distinct  from  the  land,  as  a 
rent  or  service. 

In  modern  conveyances  such  reservations  are  gener- 
ally incident  to  conditions. 

Often  in  describing  lands  in  modern  deeds  a  general 
description  is  used  with  an  exception  of  a  certain  spe- 
cific part  of  the  lands,  which  is  termed  a  reservation. 
This  is  a  technical  error.  Such  as  right  or  interest  is 
an  exception.  It  is  a  part  of  the  existing  thing  granted. 
A  reservation  refers  to  something  which  had  no  exis- 
tence in  connection  with  the  property  in  question  until 
created  by  the  deed. 


REDDESTDUM.  47 

This  distinction  is  best  illustrated  by  a  grant  of  a  lot 
excepting  a  strip  of  land  twenty  feet  in  width  along  the 
west  side  thereof.  The  grantor  would  own  the  fee  of 
the  20  foot  strip,  could  sell  it  or  build  upon  it.  It  is  a 
part  of  the  lot  which  had  an  existence  prior  to  the  mak- 
ing of  the  deed  and  comes  within  the  technical  definition 
of  an  exception. 

Suppose  a  grant  of  a  lot  was  made  reserving  a  right- 
of-way  over  the  west  20  feet.  This  would  create  an 
easement  which  had  no  previous  existence  and  be  a 
technical  reservation.  This  distinction  was  important 
because  a  reservation  except  when  in  the  nature  of  an 
easement  appurtenant  to  other  lands,  unless  reserved  to 
the  grantor  and  his  heirs,  terminated  with  the  grantor  *s 
life. 

Negaunee  Iron  Co.  vs.  Iron  Cliff  Co.,  134  Mich., 
264. 

Reservations  of  rights-of-way  are  now  regarded  as 
appurtenances  and  pass  with  grants  of  the  land. 
Lothrop  vs.  Eisner,  93  Mich.,  599. 

If  excepted  the  title  would  not  pass  by  the  grant. 

There  has  been  so  much  confusion  in  the  use  of  the 
technical  words,  excepting  and  reserving,  that  they  are 
now  held  synonymous. 

Negaunee  Iron  Co.  vs.  Iron  Cliff  Co.,  134  Mich., 
280. 

Generally  a  reservation  in  favor  of  a  stranger  to  the 
deed  is  void,  but  the  courts  have  at  times  avoided  this 
principle  in  carrying  out  the  intentions  of  the  parties. 
Martin  vs.  Clark,  102  Mich.,  267. 


48  DEEDS. 


Reservations  repugnant  to  the  grant  are  generally 
void. 

The  words  "excepting"  or  "saving  and  excepting" 
are  the  operative  words  of  an  exception  and  the  "re- 
serving" are  the  appropriate  words  for  the  creation  of 
this  right.  It  will  be  wise  to  use  one  or  the  other  and 
not  couple  them  together  in  preparing  conveyances  and 
add  the  words  of  inheritance  to  all  reservations  if  they 
are  designed  to  be  perpetual,  though,  as  stated,  the  mod- 
ern doctrine  would  seem  to  be  that  the  intention  of  the 
parties  prevail  and  words  of  inheritance  are  not  neces- 
sary to  a  perpetual  reservation  or  exception. 

Lothrop  vs.  Eisner,  93  Mich.,  599. 
Negaunee  Iron  Co.  vs.  Iron  Cliff  Co.,  134  Mich., 
264. 

Whether  the  words  "saving  and  reserving"  reserve 
title  to  land  or  only  an  easement  over  land  is  to  be  de- 
termined from  the  intention  of  the  parties. 

Bolio  vs.  Marion,  130  Mich.,  82. 


CONDITIONS. 

The  technical  language  of  a  condition  is:  "Provided 
always  this  grant  is  upon  condition." 

Conditions  are  divided  into  conditions  precedent  and 
subsequent. 

Conditions    precedent   must    be    fulfilled   before    the 
estate  will  vest. 


CONDITIONS.  49 

Conditions  subsequent  are  such  as  affect  or  defeat  an 
estate  already  vested. 

The  law  favors  present  vesting  of  estates,  but  the 
manifest  intention  of  the  grantor  must  be  observed. 

Johnson  vs.  Warren,  74  Mich.,  491. 

The  courts  do  not  look  upon  conditions  with  favor. 
The  court  of  equity  generally  refuses  to  enforce  them. 

Barrie  vs.  Smith,  47  Mich.,  130. 

The  courts  are  inclined  to  construe  conditions  as  cove- 
nants and  to  construe  conditions  strictly  against  for- 
feitures. 

Barrie  vs.  Smith,  58  Mich.,  314-318. 

When  an  estate  is  granted  upon  condition,  and  upon 
the  failure  to  perform,  or  in  case  of  breach,  there  is  a 
grant  over  to  a  third  person,  the  interest  of  the  third 
person  is  termed  a  conditional  limitation. 

The  most  common  example  of  the  use  of  conditions 
are  in  deed  from  parent  to  child  on  condition  of  support 
and  maintenance.  Restrictions  upon  the  use  of  prop- 
erty are  often  framed  as  conditions,  but  more  frequently 
as  covenants. 

Conditions  requiring  illegal  acts  are  void. 
Conrad  vs.  Long,  33  Mich.,  78. 

Conditions  restraining  alienation  generally  are  held 
void  as  repugnant  to  the  grant. 

Mandelbaum  vs.  Me  Donnell,  29  Mich.,  78. 


50  DEEDS. 

We  have  a  general  statutory  provision  to  the  effect 
that  when  conditions  are  merely  nominal  and  evince  no 
intention  of  actual  and  substantial  benefit  to  the  party 
to  whom  or  in  whose  favor  they  are  to  be  performed 
they  may  be  disregarded. 

§8828  Comp  Laws,  1897. 


There  is  another  statutory  restraint. 

The  absolute  power  of  alienation  shall  not  be  sus- 
pended by  any  condition  or  limitation  whatever  for  a 
longer  period  than  the  continuance  of  two  lives  in  being 
at  the  creation  of  the  estate,  except  in  the  single  instance 
menitoned  in  the  next  section. 

$8797    Comp.    Laws,    1897. 
C.£  IfaU  .  'f  T-  //  5  33 

A  contingent  remainder  in  fee  may  be  created  on  a 
prior  remainder  in  fee,  to  take  effect  in  event  the  per- 
sons to  whom  the  first  remainder  is  limited  shall  die 
under  the  age  of  twenty-one  years,  or  upon  any  other 
contingency  by  which  the  estate  of  such  persons  may 
be  determined  before  they  attain  their  full  age. 

§8798  Comjp.  Laws,  1897. 
.  ftu<K  .  /f,t-_  f 


The  sections  referred  to  are  found  in  the  chapter  of 
the  statutes  entitled  "Estates  in  Real  Property."  This 
chapter,  together  with  the  succeeding  ones,  entitled 
"Uses  and  Trusts,"  and  "Powers,"  were  adopted  in 
Michigan  in  the  revision  of  the  statutes  of  1846,  which 
went  into  effect  March  1,  1847.  These  chapters  were 
borrowed  from  the  State  of  New  York,  with  the  con- 
struction placed  upon  them  by  the  New  York  courts,  and 
the  New  York  act  was,  I  believe,  a  modification  of  the 
English  Thellusson  act. 


PERPETUITIES.  51 

These  chapters  codify  the  law  upon  Estates  in  Real 
Property,  Uses  and  Trusts,  and  Powers,  and  expressly 
abolish  the  common  law  trusts  and  powers  and  prohibit 
many  an  estate  valid  at  common  law. 

Wisconsin  has  copied  the  Michigan  statute  and  Min- 
nesota has  copied  Wisconsin  in  a  modified  form. 

The  three  chapters  may  be  termed  the  ''Conveyanc- 
ers' Constitution,"  as  many  a  will  and  deed  will  be  a 
legal  disaster  when  the  statutory  rules  are  applied. 

The  subject  of  Suspension  of  Alienation  is  covered 
by  a  text  book  written  by  Stewart  Chaplin,  a  New  York 
writer,  based  upon  the  New  York  statute,  which  is  the 
only  authority  upon  the  subject  aside  from  decided 

cases. 

New  York,  Michigan,  Wisconsin  and  Minnesota  have 
similar  statutes  as  has  England  in  the  Thellusson  act. 
The  statutes  in  New  York  apply  to  both  real  and  per- 
sonal property,  and  in  the  other  states  mentioned  to 
real  property  only,  and  abrogate  the  common  law  rule 
against  perpetuities  so  far  as  real  property  is  con- 
cerned, and  as  to  both  real  and  personal  property  in 
New  York. 

Wisconsin  has  held  that  the  statute  abrogates  the 
rule  against  perpetuities  and  that  there  is  no  limitation 
upon  tying  up  personal  property  in  absolute  perpetuity. 

The  decisions  of  other  states  are  inapplicable. 

Alienation  is  suspended  when  there  are  no  persons  in 
being  by  whom  an  absolute  fee  in  possession  can  be 
conveyed. 

§8796  Comp.  Laws,  1897. 
.?k<ti\.  /IS  3 


52  DEEDS. 

This  subject  is  closely  connected  with  the  subject  of 
Uses  and  Trusts  and  will  be  given  further  consideration 
when  that  is  reached. 


COVENANTS. 

So  far  as  definitions  go,  a  covenant  may  be  said  to  be 
synonymous  with  a  contract. 

As  used  in  deeds,  a  covenant  is  usually  an  agreement 
or  undertaking  as  to  the  truth  of  certain  facts  or  to  do 
or  not  to  do  some  particular  thing. 

A  covenant  is  not  in  any  manner  essential  to  a  deed 
so  far  as  the  effect  of  the  instrument  to  pass  a  present 
estate  in  the  lands  is  concerned.  Though,  as  has  been 
stated,  a  deed  with  the  usual  covenants,  generally 
termed  a  warranty  deed,  passes  an  after  acquired  title 
and  the  purchaser  under  a  deed  without  covenants  prior 
to  the  statute  of  1915  could  not  claim  the  position  of  a 
bona  fide  purchaser  for  value  under  the  recording  laws. 

The  legal  effect  of  a  deed  with  covenants  to  pass  an 
after  acquired  title  cannot  be  varied  by  parol  evidence. 

Dye  vs.  Thompson,  126  Mich.,  597. 

A  quit  claim  deed  can  never  pass  a  subsequently  ac- 
quired title  not  owned  in  equity  at  date  of  delivery. 

Frost  vs.  Missionary  Society,  56  Mich.,  49. 
Fay  vs.  Wood,  65  Mich.,  390. 

The  general  use  of  covenants  for  title  probably  arose 
upon  the  passage  of  the  statute  of  uses. 


COVENANTS.  53 

A  warranty  was  an  incident  of  every  feudal  grant 
and  the  obligation  to  warrant  and  defend  was  generally 
fulfilled  with  the  mailed  fist  and  the  lance,  which  were 
the  original  source  of  title  to  land. 

Under  the  Michigan  Statutes  no  covenant  shall  be  im- 
plied in  any  conveyance  whether  the  instrument  con- 
tains covenants  or  not. 

§8959,  Comp.  Laws. 


No  particular  form  or  language  is  essential  to  create 
a  covenant.  Any  words  evidencing  an  intention  to  be 
bound  to  do  or  not  to  do  a  particular  thing  are  suffi- 
cient. 

Johnson  vs.  Eollenworth,  48  Mich.,  140. 

Several  covenants  may  be  blended  into  a  single  sen 
tence. 

Supra. 

A  recital  in  a  deed  may  operate  as  a  covenant. 

Deeds  as  executed  in  modern  times  are  usually  signed 
only  by  the  grantors.  However,  covenants  contained 
in  a  deed  to  be  performed  by  the  grantee  are  usually 
binding  and  enf  orcible  without  his  signature,  the  grant- 
ee's acceptance  of  such  a  deed  and  enjoyment  of  the 
estate  granted  being  sufficient  evidence  of  his  assent  to 
the  covenant. 

Crawford  vs.  Edwards,  33  Mich.,  354. 

The  above  rule  is  criticised  in  many  of  the  states,  but 
prevails  in  New  York,  Michigan  and  New  Jersey. 


54  DEEDS. 

The  most  common  illustration  of  this  principle  is  the 
grant  of  a  parcel  of  land  with  a  statement  in  the  deed 
that  it  is  subject  to  a  mortgage  described  which  the 
grantee  assumes  and  agrees  to  pay. 

Crawford  vs.  Edwards,  33  Mich.,  354. 

COVENANTS  FOE  TITLE. 

The  usual  covenants  for  title  are : 

1.  The  covenant  of  seizen. 

2.  The  covenant  of  good  right  to  convey. 

3.  The  covenant  against  incumbrance. 

4.  The  covenant  of  quit  enjoyment. 

5.  The  covenant  of  warranty. 

6.  The  covenant  of  further  assurances. 

The  effect  of  the  covenants  is  always  limited  to  the 
land  described  and  to  the  estate  conveyed. 

COVENANTS  OF  SEIZIN. 

This  covenant  is  usually  in  the  words,  "he  is  well 
seized  of  the  above  granted  premises  in  fee  simple." 

The  effect  and  meaning  of  the  covenants  of  seizin 
vary  in  the  different  states. 

In  most  of  the  states  it  is  an  undertaking  that  the 
grantor  has  an  indefeasible  title  in  fee. 

Peck  vs.  Houghtaling,  35  Mich.,  126. 
In  other  states  mere  possession  under  claim  of  title 


COVENANTS  OF  SEIZEN.  55 

will  satisfy  it.    This  is  the  rule  in  Massachusetts,  Maine 
and  Ohio. 

The  covenants  of  good  right  to  convey  is  generally 
looked  upon  as  an  incident  of  the  covenant  of  seizin, 
though  it  is  sometimes  used  in  conveyances  under  pow- 
ers, and  is  rarely  found  in  the  forms  of  deeds  in  com- 
mon use,  except  under  the  circumstance  stated. 

These  covenants  are  broken  at  the  date  of  delivery 
of  the  deed  if  at  all. 

They  do  not  run  with  the  land. 

This  is  a  common  technical  expression  and  means  that 
if  "A"  conveys  to  "B"  with  the  covenant  of  seizin  and 
of  good  right  to  convey,  and  "B"  conveys  to  "C"  with 
like  covenants,  and  "A"  has  no  title,  it  follows  that 
' '  B  "  would  not  derive  title,  nor  would  ' '  C. "  *  '  C ' '  could 
sue  "B"  but  he  could  not  sue  "A."  The  reason  of  this 
is  that  the  covenant  of  seizin  by  "A"  being  broken 
when  made  becomes  a  right  of  action  in  favor  of  "B" 
and  was  such  a  right  separate  and  distinct  from  the 
title  to  the  land  at  the  time  "B"  conveyed  to  "C"  and 
would  not  pass  under  the  deed. 

Under  the  doctrine  that  the  covenants  of  seizin  is  an 
assurance  of  title,  a  breach  occurs : 

1.  Where  there  is  an  outstanding  title  in  a 
third  person. 

2.  Where  there  is  an  outstanding  interest  in 
a  third  person. 

3.  Where  there  is  a  want  of  title  to  buildings 
or  other  things  affixed  to  the  land. 


56  DEEDS. 

<••  The  covenant  of  seizin  being  broken  when  made,  the 
statute  of  limitations  runs  against  an  action  upon  it 
from  the  delivery  of  the  deed. 


COVENANT  AGAINST  ENCUMBRANCES. 

The  covenant  against  encumbrances  usually  follows 
the  covenant  of  seizin  and  is  in  the  words,  "they  (re- 
ferring to  the  above  granted  premises)  are  free  and 
clear  from  all  encumbrances  whatever." 

This  covenant,  like  the  covenant  of  seizin,  is  broken 
when  made,  it  does  not  run  with  the  land,  and  the  stat- 
ute runs  against  an  action  upon  it  from  the  delivery  of 
the  deed. 

Pease  vs.  Warner,  153  Mich.,  140. 

This  covenant  is  broken  by: 

The  existence  of  an  unpaid  mortgage. 

The  existence  of  an  unpaid  valid  tax  which 
had  become  a  lien  at  the  date  of  delivery  of  the 
deed. 

A  restriction  upon  the  use  of  property. 

An  easement  such  as  a  right-of-way  over  the 
premises. 

An  outstanding  lease  is  an  encumbrance. 

Simon  vs.  Diamond  Match  Co.,  159  Mich.,  241. 

In  most  states  an  outstanding  right  of  dower  is  an 
encumbrance. 

Any  right  in  the  land  vested  in  a  third  person  which 


QUIET  ENJOYMENT.  57 

tends  in  any  manner  to  diminish  its  value  may  generally 
be  said  to  be  an  encumbrance. 

Simon  vs.  Diamond  Match  Co.,  159  Mich.,  241. 

Encumbrances  are  of  two  kinds,  those  which  affect 
the  title,  such  as  money  charges,  mortgages,  etc.,  and 
those  which  affect  the  physical  condition  of  the  prop- 
erty, such  as  a  public  road  or  an  alley  or  right-of-way. 

Knowledge  of  the  existence  of  an  encumbrance  affect- 
ing the  title  by  the  grantee  prior  to  the  conveyance  is 
no  defense  to  an  action  upon  the  covenant. 

Whether  an  action  will  lie  upon  the  covenant  against 
encumbrances  because  of  the  existence  of  a  burden  or 
servitude  visible  to  all,  such  as  a  public  highway  or 
alley,  is  an  open  question.  The  court  of  equity  has  re- 
fused to  enforce  the  covenant  as  to  such  a  right. 

Haldane  vs.  Sweet,  55  Mich.,  196. 

Probably  the  weight  of  authority  is  that  such  a  right 
is  a  breach  of  the  covenant.  Such  is  the  rule  in  New 
York,  Alabama,  Connecticut,  Indiana,  Maine,  Missouri, 
Mississippi,  New  Hampshire,  Vermont  and  Virginia. 

Huyck  vs.  Andrews,  20  N.  E.,  581. 

The  opposite  rule  prevails  in  Wisconsin,  Georgia, 
Iowa,  and  Pennsylvania. 


COVENANT  OF  QUIET  ENJOYMENT. 

The  covenant  of  quiet  enjoyment  is  ordinarily  found 
in  leases  in  the  words,  "may  quietly  and  peacefully 


58  DEEDS. 

have,  hold  and  enjoy  the  premises  for  the  term  afore- 
said. ' ' 

In  deeds  it  is  generally  regarded  as  synonymous  with 
the  covenants  of  warranty. 


COVENANT  OF  WARRANTY. 

The  covenant  of  warranty  is  generally  expressed  in 
the  words,  "will  warrant  and  defend  the  same  (the 
land  granted)  against  all  lawful  claims  whatsoever." 

This  covenant  differs  from  the  previous  covenants  in 
that  the  grantee  must  either  have  been  prevented  from 
taking  possession,  or,  having  taken  possession,  must 
have  evicted  to  constitute  a  breach. 

Mere  existence  of  an  outstanding  title  will  not  amount 
to  a  breach  of  the  covenant  of  warranty. 

Rights  which  amount  to  breaches  of  the  covenant 
against  encumbrances,  if  an  eviction  occurs  through 
them,  are  breaches  of  the  covenant  of  warranty. 

The  eviction  must  be  under  a  lawful,  paramount  or 
superior  title. 

A  voluntary  surrender  of  possession  of  the  land  by 
the  covenantee,  either  before  or  after  judgment,  is  an 
eviction. 

Should  the  covenantee  voluntarily  surrender  posses- 
sion, the  burden  of  proving  the  validity  of  the  para- 
mount title  would  be  upon  him  in  an  action  of  covenant. 


WARRANTY.  59 

The  practice  is  to  await  the  institution  of  suit  and 
give  notice  to  the  grantor  to  defend  the  action.  If  such 
notice  is  given,  the  warrantor  is  bound  by  the  judgment 
in  an  action  by  the  covenantee. 

Mason  vs.  Kellogg,  38  Mich.,  132. 

The  covenants  of  warranty  and  quiet  enjoyment  run 
with  the  land ;  that  is,  an  evicted  purchaser  may  sue  any 
prior  grantor  whose  covenant  was  made  when  the  para- 
mount title  existed. 

The  covenant  of  warranty  running  with  the  land 
inures  to  the  benefit  of  a  purchaser  under  a  quit  claim 
deed  or  on  foreclosure  of  a  mortgage. 

That  is,  the  purchaser  under  a  quit  claim  deed  can 
sue  the  earlier  grantors  for  breach  of  covenant  or  war- 
ranty. That  is,  though  he  has  no  action  against  his  im- 
mediate grantor,  he  may  sue  the  grantor  of  the  person 
from  whom  he  purchased  for  breach  of  such  covenants 
as  run  with  the  land  if  the  paramount  title  existed  prior 
to  his  deed.  This  is  merely  the  application  of  the  doc- 
trine of  a  covenant  running  with  the  land. 

Covenants  apply  only  to  the  land  and  the  interest 
granted. 

A  deed  to  "all  the  right,  title  and  interest  of  a  per- 
son in  a  piece  of  land,"  followed  by  full  covenants, 
amounts  to  a  quit  claim  deed,  if  the  grantors  had  no 
title.  The  covenants  attach  only  to  the  estate  conveyed. 
Such  a  deed  conveys  whatever  interest  the  grantor  had. 

The  covenant  of  further  assurances  is  not  in  common 
use.  It  was  an  agreement  to  execute  such  additional 


60  DEEDS. 

deeds  or  conveyances  in  the  future  as  should  be  found 
necessary  to  vest  the  title,  and  usually  was  in  the  form, 
"that  he  will  at  any  and  all  times  hereinafter,  upon  the 
reasonable  request  at  the  proper  cost  and  charge  of  the 
second  party,  his  heirs  and  assigns,  make,  execute,  and 
deliver  all  and  every  such  further  and  other  lawful  and 
reasonable  acts,  conveyances  and  assurances  for  more 
effectually  vesting  and  confirming  the  granted  premises 
in  the  second  party  as  his  counsel,  learned  in  the  law, 
shall  reasonably  devise  or  require.'* 

The  word  "assurance"  as  used  at  common  law,  was 
synonymous  with  the  word  "deed"  as  used  at  the  pres- 
ent time. 

The  forms  of  deeds  in  common  use  have  a  blank  space 
following  the  covenant  against  encumbrances,  and  also 
following  the  covenant  of  warranty.  When  an  encum- 
brance is  to  be  excepted  it  must  be  excepted  from  both 
covenants. 

If  a  mortgage  were  excepted  from  the  operation  of  the 
covenant  against  encumbrances,  but  not  from  the  cove- 
nant of  warranty,  it  would  not  relieve  the  grantor  from 
this  obligation  under  the  covenant  of  warranty. 

Welton  vs.  Welton,  109  Mich.,  356. 

So  an  exception  from  the  covenant  of  warranty  with- 
out an  exception  from  the  covenant  against  encum- 
brances might  leave  an  opening  for  an  action  for  breach 
of  the  latter  covenant. 

In  the  drafting  of  covenants  in  conveyances  where 
husband  and  wife  join  as  grantors,  remember  the  lim- 
ited capacity  of  a  married  woman  to  contract. 


USER  OF  LAND.  61 

fler  joint  or  several  covenants  in  grants  of  land  in 
which  she  has  only  an  inchoate  dower  or  in  which  she  is 
a  tenant  by  entireties  are  not  binding  upon  her. 


COVENANTS  AS  TO  USEE  OF  LAND. 

In  conveyances  of  city  property,  a  covenant  restrict- 
ing the  use  of  the  property,  commonly  termed  "building 
restrictions,"  is  often  inserted. 

All  restrictions  upon  the  use  of  land  must  be  read 
with  the  statutory  provision  in  mind : 

"When  any  conditions  annexed  to  a  grant  or 
conveyance  of  lands  are  purely  nominal  and 
evince  no  intention  of  actual  or  substantial  bene- 
fit to  the  party  to  whom  or  in  whose  favor  they 
are  to  be  performed,  they  may  be  wholly  disre- 
garded, and  a  failure  to  perform  the  same  shall 
in  no  case  operate  as  of  forfeiture  of  the  lands 
conveyed  subject  thereto." 

$8828  Comp.  Laws.  1897. 

tf -K.  /i/t',  7U*,*£         //jrrr 

They  must  be  read  with  the  rule  in  mind  founded  up- 
on public  policy,  that  the  law  favors  the  free  and  abso- 
lute ownership  of  real  estate,  and  the  use  of  the  same 
by  the  owner  in  such  manner  as  he  may  desire,  always 
considering  that  his  neighbors  have  similar  rights, 
which  must  not  be  trespassed  upon. 

The  general  principal  has  been  laid  down  that  every 
owner  of  the  fee  in  land,  when  he  conveys  a  part  of  it, 
may  impose  such  a  limitation  upon  its  use  as  will  pre- 
vent the  grantee  and  those  claiming  under  him  from 
making  any  use  of  the  part  conveyed  that  will  impair 
the  value  of  the  part  retained. 


62  DEEDS. 

This  right  is  subject  to  the  limitation  that  it  must  be 
exercised  reasonably  and  with  a  due  regard  to  public 
policy  and  the  statutory  limitation  quoted. 

The  remedies  for  a  breach  of  the  covenant  are  an 
action  for  damages  or  an  injunction  for  a  threatened 
breach,  the  latter  being  the  only  effective  remedy. 

The  court  of  New  York  has  held  in  this  connection 
that  the  granting  of  an  injunction  is  discretionary  and 
has  laid  down  the  rule: 

" Where  the  conditions  of  the  adjacent  prop- 
perty  have  so  changed  that  the  restricted  prop- 
erty is  no  longer  desirable  for  the  use  for  which 
it  was  designed  there  is  no  ground  for  equitable 
relief." 

It  is  not  necessary  that  the  change  in  character  of  the 
neighborhood  extend  to  all  the  property  affected  by  the 
covenant. 

Trustees  of  Columbia  College  vs.   Thatcher,  87 
N.  Y.,  311. 

The  Massachusetts  court  has  enunciated  the  rule  that 
the  courts  will  not  compel  the  observance  of  restric- 
tions and  conditions  when  they  have  ceased  to  be  of  any 
benefit. 

Jackson  vs.  Stevenson,  31  N.  E.,  691. 

The  Michigan  court  recognized  the  doctrine  in  a  dic- 
tum: 

"It  is  entirely  possible  that  the  time  may  come 
when  the  maintenance  of  these  conditions  will  be 
of  no  benefit  to  defendant  or  his  grantees.  In 


USER  or  LAND.  63 

such  a  case  the  complainant  would  no  longer  be 
compelled  to  maintain  them." 

Abraham  vs.  Stewart,  83  Mich.,  10. 

The  doctrine  was  recently  recognized,  but  a  ruling 
was  made  that  the  facts  in  the  particular  case  did  not 
warrant  its  application,  in 

Moore  vs.  Curry,  176  Mich.,  456. 

The  construction  and  interpretation  of  building  re- 
strictions depend  largely  upon  the  language  used  and 
particularly  upon  the  acts  of  the  parties  interested  in 
the  land  included  in  the  subdivision,  making  a  prac- 
tical construction  of  their  understanding  of  the  mean- 
ing of  the  restrictive  covenants. 

The  following  are  the  leading  Michigan  cases  involv- 
ing building  restrictions: 

Frink  vs.  Hughes,  133  Mich.,  63 — Construing  the  re- 
striction upon  King  Avenue  and  enjoining  the  erection 
of  a  photograph  gallery  upon  the  rear  of  a  lot  restrict- 
ed to  residence  purposes  only. 

Harris  vs.  Rorabacher,  137  Mich.,  292 — Construing 
the  restrictions  upon  Woodland  Avenue  enjoining  the 
erection  of  a  two-family  flat  upon  land  restricted  to  be 
used  and  occupied  for  one  dwelling  house. 

James  vs.  Irvine,  141  Mich.,  376 — Construing  the  re- 
strictions upon  Euclid  Avenue  and  refusing  to  enjoin 
a  two-family  flat  upon  land  restricted  to  be  used  and 
occupied  for  a  dwelling.  The  decision  in  the  case  was 
based  on  the  "conduct  of  the  original  grantors  and 
their  grantees  showing  their  understanding,"  rather 
than  upon  the  language  of  the  covenant. 


64  DEEDS. 

Bignall  vs.  Young,  151  Mich.,  69 — Construing  the  re- 
strictions upon  Melbourne  Avenue  and  enjoining  the 
erection  of  a  two-family  flat  upon  land  restricted  to  be 
used  for  " nothing  but  a  two-story  dwelling  house." 

Tillotson  vs.  Gregory,  151  Mich.,  128 — Construing  the 
restriction  upon  Chandler  Avenue  and  refusing  to  en- 
join a  flat  upon  lands  restricted  to  residence  purposes, 
and  ruling  that  a  restriction  limiting  the  space  between 
the  buildings  and  side  lines  of  the  lots  had  been  waived 
by  the  acts  of  the  parties. 

Stott  vs.  Avery,  156  Mich.,  674 — Holding  that  an  own- 
er of  restricted  land  who  attends  a  public  sale  of  other 
lands  in  the  subdivision  which  are  offered  free  from  re- 
strictions, and  who  does  not  protest,  is  estopped  from 
enforcing  the  restriction  against  the  purchasers. 

Allen  vs.  City  of  Detroit,  167  Mich.,  464 — Construing 
the  restriction  upon  Cadillac  Avenue,  enjoining  the  erec- 
tion of  a  fire  engine  house  upon  lands  restricted  to  resi- 
dence purposes,  laying  down  the  principle  that  a  fail- 
ure to  insert  the  restrictions  in  all  conveyances  will  not 
defeat  the  restrictions  if  they  have  been  maintained 
from  their  inception,  and  that  restrictions  are  binding 
upon  municipalities  as  well  as  private  individuals. 

Erichsen  vs.  Tappert,  172  Mich.,  457 — Construing  the 
restriction  upon  Chandler  Avenue  and  enjoining  the 
erection  of  a  store  and  flat  upon  the  rear  of  the  lot,  but 
facing  an  unrestricted  street,  the  land  being  restricted 
to  dwelling  house  purposes. 

Schadt  vs.  Brill,  173  Mich.,  647 — Construing  the  re- 
striction upon  Helen  Avenue,  enjoining  the  erection  of 
a  duplex  flat,  with  a  single  entrance,  on  land  restricted 
to  be  used  for  a  dwelling  house,  though  a  double  house 


USER  OF  LAND.  65 

had  been  erected  on  the  extreme  end  of  the  subdivision. 

Main  vs.  Davis,  176  Mich.,  443 — Construing  the  re- 
strictions on  Alger  Avenue  and  enjoining  a  small  fac- 
tory upon  the  rear  of  a  lot  restricted  to  residence  pur- 
poses. 

Moore  vs.  Curry,  176  Mich.,  443 — Construing  the  re- 
strictions on  Curry  stone  or  Grand  Avenue  and  enjoin- 
ing a  store  on  the  Woodward  Avenue  frontage. 

Kingston  vs.  Burch,  176  Mich.,  566 — Construing  the 
restrictions  on  Josephine  Avenue  and  enjoining  a  du- 
plex flat  upon  lands  subject  to  a  restriction,  the  prem- 
ises to  be  used  for  residence  purposes  only  and  no  dwell- 
ing house  to  be  erected  costing  less  than  $2,000,  the  de- 
cision being  based  on  the  fact  that  the  practical  con- 
struction of  the  land  owners  had  been  to  a  user  for 
single  dwellings. 

Misch  vs.  Lehman,  178  Mich.,  225 — Involving  the  same 
restriction  as  in  Schadt  vs.  Brill,  holding  that  one  breach 
of  the  restriction  alone  acquiesced  in  will  not  estop  its 
enforcement,  and  that  an  injunction  should  not  be  per- 
petual, but  should  be  subject  to  modification  if  future 
changes  in  the  neighborhood  makes  its  continuance  in- 
equitable. 

Harts  vs.  Kales  Realty  Co.,  178  Mich.,  560 — Enun- 
ciating the  doctrine  that  a  person  accepting  a  convey- 
ance of  a  piece  of  restricted  land  adjoining  unrestricted 
land  previously  owned  by  the  grantee,  containing  an 
agreement  that  grantee  would  use  his  entire  land  ac- 
cording to  the  restriction,  is  bound  thereby,  though  the 
agreement  was  not  signed  by  him. 

Stewart  vs.  Clark,  181  Mich.,  408,  21  D.  L.  N.,  766— 
Construing  a  restriction  involving  building  line. 


66  DEEDS. 

Langton  vs.  Stedman,  21  D.  L.  N.,  961 — Ruling  that 
the  comparative  damage  to  the  complainant  is  of  no 
importance  and  that  delay  and  acquiescence  will  not 
defeat  the  remedy  by  injunction  unless  continued  so 
long  as  to  defeat  the  right  itself. 

Zoellar  vs.  Goldberg,  21  D.  L.  N.,  1090 — Construing 
the  restriction  on  Chandler  Avenue,  holding  that  the 
rear  of  a  lot  restricted  to  residence  purposes  could  not 
be  used  for  other  purposes  than  a  corner  with  a  front- 
age on  another  street. 

Lambrecht  vs.  Graulich,  22  D.  L.  N.,  687 — Holding 
that  when  a  vendor  owning  several  lots  sells  one  with- 
out restriction  and  later  sells  his  remaining  lots  re- 
stricted, the  lot  first  sold  cannot  be  subjected  to  such  re- 
strictions. 


CONCLUSION. 

The  conclusion  of  a  deed  is  a  formal  statement  of  the 
fact  of  its  execution  and  the  date  thereof.  It  is  not  es- 
sential to  the  validity  of  the  instrument. 

SIGNING. 

At  common  law,  signing  of  a  deed  was  unnecessary, 
sealing  and  delivery  being  the  essential  formalities. 

Signing  is  generally  necessary  in  the  United  States 
under  the  statutes. 

§8956  Comp.  Laws,  1897. 


SEAL.  67 

It  is  customary  to  sign  the  instrument  at  the  end,  but 
a  signature  in  any  part  of  the  instrument  followed  by 
delivery  has  been  held  sufficient. 

The  manual  act  of  signing  may  be  by  the  person  or  by 
some  other  person  in  his  presence  at  his  direction  or  by 
mark. 


SEAL. 

Sealing  was  at  common  law  of  vital  importance  and 
took  the  place  of  signing.  As  I  understand  it,  the  seal 
was  a  substitute  enabling  the  illiterate  to  identify  their 
acts.  In  most  of  the  United  States,  the  necessity  of 
sealing  has  been  abolished  by  statute,  though  a  seal  is 
still  essential  to  the  validity  of  deeds  in  New  York  and 
Vermont. 

Under  the  Michigan  statutes  a  scroll  or  device  used 
as  a  seal  is  of  the  same  effect  as  a  seal. 

§9005  Comp.  Laws,  1897. 


The  statute  provides  that  a  conveyance  shall  not  be 
deemed  invalid  for  want  of  a  seal  or  scroll. 

10417  Gomp.  Laws,  1897. 


The  seal  of  a  corporation  affixed  to  a  conveyance  is 
presumptive  evidence  that  the  execution  was  authorized 
by  the  corporation. 

Merritt  vs.  Montgomery,  25  Mich.,  72. 
Benedict  vs.  Denton,  Walk.  Ch.,  336. 


68  DEEDS. 


WITNESSES. 

Witnesses  are  not  essential  to  the  validity  of  a  deed 
either  at  common  law  or  in  this  state  so  far  as  its  valid- 
ity is  concerned.  They  are,  however,  essential  to  en- 
title a  deed  to  record,  if  executed  in  this  state,  and 
under  the  recording  laws  of  many  of  the  states. 

The  witnesses  to  a  deed  may  be  any  persons  capable 
of  understanding  the  act  having  no  interest  in  the  trans- 
action. 

Parties  to  the  instrument  should  not  be  witnesses  to 
the  signature  of  other  parties,  and  husbands  and  wives 
being  generally  disqualified  as  witnesses  for  or  against 
the  other  should  not  act  as  witnesses  to  the  conveyances 
of  each  other. 

There  prevails  an  unwarranted  contempt  for  the  for- 
mality of  witnessing  the  execution  of  written  instru- 
ments. 

If  it  becomes  necessary  to  prove  the  execution  of 
an  instrument  some  years  later,  the  subscribing  wit- 
ness will  usually  recognize  his  signature  but  may  have 
no  recollection  of  the  transaction.  Suppose  you  as  a 
subscribing  witness  are  under  examination  on  oath 
and  asked:  How  do  you  know  that  the  grantor  signed 
this  deed?  Have  you  not  at  request  signed  your  name 
as  a  witness  when  in  fact  you  did  not  see  the  in- 
strument executed?  How  do  you  know  that  this  was  not 
one  of  those  kindly  acts?  There  is  only  one  course: 


DELIVERY.  69 

Never  subscribe  your  name  as  a  witness  to  the 
execution  of  any  instrument  unless  you  see  the 
maker  affix  his  signature  or  the  maker  in  your 
presence  declare  the   existing   signature  to  be 
his, 

otherwise,  as  no  man's  memory  is  infallible,  your  name 
as  a  subscribing  witness  will  ever  be  a  menace  to  any 
instrument  whether  rightfully  or  wrongfully  attached. 

DELIVERY. 

Delivery  of  a  deed  is  as  essential  to  the  validity  of 
modern  conveyances  as  was  livery  of  seizin  to  the  feudal 
feoffment.  Delivery  may  be  said  to  take  the  place  of 
livery  of  seizin. 

No  grant  is  valid  without  delivery  of  the  deed.  What 
amounts  to  a  sufficient  delivery  is  generally  a  question 
of  intention.  It  involves  two  elements,  transfer  of  con- 
trol of  the  instrument  by  the  grantor  and  acceptance  by 
the  grantee. 

Delivery  must  be  made  in  the  lifetime  of  the  grantor. 
Taft  vs.  Taft,  59  Mich.,  185. 

Acceptance  by  the  grantee  is  presumed. 

Possession  of  the  instrument  by  the  grantee  is  pre- 
sumptive evidence  of  delivery. 

Recording  is  prima  facie  evidence  of  delivery. 

Jourdan  vs.  Patterson,  102  Mich.,  602. 
Holmes  vs.  Me  Donald,  1  >9  Mich.,  503. 


70  DEEDS. 

Parting  with  control  of  the  deed  by  the  grantor  is 
the  essential  element  of  delivery. 

Whether  or  not  delivery  has  been  made  comes  into 
question  most  frequently  when  deeds  are  made,  but  the 
grantor  desires  to  suspend  their  effect  during  his  life- 
time. 

As  to  such  cases  where  the  instrument  is  fully  exe- 
cuted but  retained  by  the  grantor  in  his  possession  and 
control,  they  are  usually  invalid. 

When  the  deed  is  delivered  to  a  third  person  to  be 
delivered  by  him  to  the  grantee  after  the  grantor's 
death,  if  no  control  is  retained  by  the  grantor  this  de- 
livery is  sufficient. 

Such  a  transaction  is  generally  termed  a  delivery  in 
escrow,  but  this  is  not  technically  correct.  When  the 
delivery  is  made  to  a  third  person  unconditionally  ex- 
cept to  await  the  death  of  the  grantor,  delivery  is  re- 
garded as  made  when  deposited.  A  technical  escrow  is 
a  delivery  to  a  third  person  to  be  delivered  by  the  third 
person  to  the  grantee  on  performance  of  some  condi- 
tions, as  payment  of  money.  In  such  a  case  there  is  no 
legal  delivery  until  the  second  delivery  is  made. 

A  delivery  to  a  third  person  to  be  delivered  to  the 
grantee  without  any  conditions  attached,  will  pass  title 
to  the  premises  though  a  devise  of  the  land  to  another 
is  made  at  a  later  date. 

If  the  grantor  in  delivering  to  the  third  person  re- 
tains a  right  to  recall  the  instrument,  there  is  no  de- 
livery and  the  deed  will  be  void. 


ACKNOWLEDGMENT.  71 

There  is  an  exception  of  the  foregoing  rules  in  case 
of  government  patents.  Delivery  of  a  patent  is  not  es- 
sential. Such  a  medium  of  transferring  title  is  akin 
to  the  common  law  transfers  of  title  by  record  in  which 
livery  of  seizin  was  unnecessary.  It  is  an  act  of  the 
sovereign  power. 

Though  the  deed  in  question  has  been  delivered  if  it 
appear  from  the  contents  of  the  instrument  that  it  was 
intended  to  take  effect  only  in  event  of  the  grantor's 
death,  it  may  be  construed  as  a  will  and  not  a  legal 
grant  of  land. 

Bigley  vs.  Souvey,  45  Mich.,  370. 
Leonard  vs.  Leonard,  45  Mich.,  503. 

ACKNOWLEDGMENT. 

As  a  general  rule  the  acknowledgment  of  a  deed  is  a 
requisite  of  the  recording  laws,  but  is  not  essential  to 
its  validity. 

Taylor  vs.  Young,  48  Mich.,  268. 

In  Ohio  acknowledgment  is  essential  to  the  validity 
of  the  instrument. 

An  acknowledgment  is  a  declaration  before  a  com- 
petent officer  by  a  person  that  the  execution  of  a  par- 
ticular instrument  or  writing  is  his  free  act  and  deed. 

Who  is  a  competent  officer  is  wholly  a  matter  of  stat- 
utory law,  but  the  most  common  official  is  the  notary 
public,  whose  authority  is  generally  recognized  by  the 
laws  of  all  states  and  countries. 


72  DEEDS. 

The  notary  was  originally  one  who  took  notes  of  ju- 
dicial proceedings  under  the  Roman  law,  and  was  an 
important  personage  under  the  canon  law  and  in  Euro- 
pean countries  generally.  I  believe  in  Canada  commis- 
sions are  not  issued  indiscriminately  as  in  the  United 
States. 

The  notary  originally  kept  a  record  of  his  acts.  The 
Michigan  statutes  expressly  provide  for  the  preserva- 
tion of  such  records  on  retirement  from  office,  but  do 
not  expressly  require  the  keeping  of  records. 

The  certificate  of  acknowledgment  must  contain: 

1.  Venue  or  locality,  that  is  state  and  county. 

2.  Date  of  acknowledgment. 

3.  Before  whom  acknowledged. 

4.  That  the  grantor  personally  appeared. 

5.  The  grantor's  name. 

6.  The  officer's  acquaintance  with  grantor. 

7.  The  fact  of  acknowledgment. 

8.  The  officer's  signature. 

9.  In  some  states  the  officer's  seal. 

10.    In  some  states  the  date  the  officer's  com- 
mission expires. 

A  substantial  compliance  with  the  above  requirements 
is  generally  sufficient. 

An  officer  who  certifies  the  acknowledgment  of  a 
stranger  is  liable,  together  with  his  bondsmen,  for  dam- 
ages. 

Doran  vs.  Butler,  74  Mich.,  643. 

Identification  or  introduction  by  a  common  acquaint- 
ance of  respectable  standing  in  the  community  should 


ACKNOWLEDGMENT.  73 

always  be  required.     The  notary  is  bound  to  inform 
himself  of  the  identity  of  the  person. 

Cameron  vs.  Culkins,  44  Mich.,  531. 

Interest  in  the  transaction  will  disqualify  the  notary 
to  act. 

The  Michigan  legislature  has  determined  that  inter- 
est in  a  corporation  or  even  being  an  officer  in  the  cor- 
poration does  not  disqualify  a  notary  to  act  unless  the 
notary  is  individually  or  officially  a  party  to  the  instru- 
ment. 

Act  No.  18,  Public  Acts  Mich.,  1909. 

The  notary's  certificate  must  be  based  upon  his  per- 
sonal knowledge.  If  he  does  not  understand  the  lan- 
guage of  the  person  desiring  to  acknowledge  an  instru- 
ment he  cannot  utilize  the  services  of  an  interpreter. 

Deivey  vs.  Campau,  4  Mich.,  565. 
Harrison  vs.  Oakman,  56  Mich.,  346. 

The  law  provides  for  the  administration  of  oaths 
through  interpreters,  but  no  such  authority  is  given  to 
the  notary ;  he  must  know  the  facts  to  which  he  officially 
certifies  of  his  own  knowledge. 

In  Michigan,  notaries  are  appointed  for  the  county  in 
which  they  are  domiciled  but  they  may  act  anywhere  in 
the  state. 

If  a  notary  appointed  for  Wayne  County  acts  in  Ma- 
comb  County,  the  venue  of  his  certificate  would  be  Ma- 
comb  County,  it  would  recite  that  the  party  appeared 
"  before  me  the  subscriber,  a  Notary  Public  in  and  for 


74  DEEDS. 

the  County  of  Wayne,  acting  in  the  County  of  Macomb. ' ' 
He  should  sign  "Notary  Public,  Wayne  County,  Mich- 
igan, acting  in  the  County  of  Macomb." 

Notaries  in  Michigan  since  1903  are  required  to  add 
to  their  certificate  the  date  of  expiration  of  their  com- 
missions. 

Act  18,  P.  A.  Mich.,  1903. 


THE  RECORDING  LAWS. 

From  the  earliest  colonial  days  in  America  a  system 
of  public  registration  of  conveyances  of  land  has  been 
provided,  open  to  the  inspection  of  the  public  gener- 
ally. 

Each  state  has  provided  by  statute  in  what  manner 
conveyances  shall  be  executed  to  entitle  them  to  record. 

The  present  Michigan  statutes  require  that  deeds  exe- 
cuted within  the  state  be  executed  in  presence  of  two 
witnesses  who  shall  subscribe  the  instrument  and  that 
the  grantor  acknowledge  the  execution  of  the  instrument 
before  any 

Judge,  Clerk  or  Commissioner  of  a  Court  of 
Record,    or 

Notary  Public, 

Justice  of  the  Peace,  or 

Master  in  Chancery. 

§8962    Comp.    Laws,    1897. 
«.*.  7*,2r,"'«r  '— //f*V 

Amended  by  Act  103,  P.  A.,  1905. 


RECOEDING  LAWS.  75 

The  statutory  manner  of  execution  has  varied  from 
time  to  time. 

Deeds  executed  in  any  other  state,  territory  or  dis- 
trict of  the  United  States  may  be  executed  according  to 
the  laws  of  the  place  of  execution  and  acknowledged  be- 
fore any 

Judge  of  a  Court  of  Record, 
Notary  Public, 
Justice  of  the  Peace, 
Master    in    Chancery. 

Or  other  officers  authorized  by  the  laws  of  the 
state,  territory  or  district  to  take  acknowledg- 
ments of  deeds,  or  before  a  commission  appointed 
by  the  governor  of  the  State. 

§8963    Comp.    Laws,    1897. 


The  acknowledgments  taken  in  other  states,  except 
when  taken  before  a  commissioner  appointed  by  the 
governor  of  the  state,  shall  be  authenticated  with  the 
seal  of  the  officer. 

If  such  officer  has  no  seal  a  certificate  of  the  clerk 
or  proper  officer  of  a  court  of  record  or  the  Secretary 
of  State  of  the  place  under  his  seal  of  office  shall  be 
attached,  stating  that  the  person  certifying  was  at  the 
date  of  the  certificate  the  officer  represented,  that  he  be- 
lieves the  signature  genuine  and  that  the  deed  is  ack- 
nowledged according  to  the  laws  of  the  state. 

§8964   Comp.    Laws,    1897. 


Deeds  executed  in  foreign  countries  may  be  executed 


76  DEEDS. 

according  to  the  laws  of  such  country  and  acknowledged 
before  any 

Notary  Public, 
Minister  plenipotentiary, 
Minister  extraordinary, 
Minister  resident, 
Charge  d  'Affairs, 
Commissioner,  or 

Consul  of  the  United  States  appointed  to  re- 
side therein,  which  shall  be  certified  by  the  officer 
taking  the  same  or  if  a  notary,  under  his  seal. 

§8965  Comp.  Laws,  1897. 


This  act  is  made  retroactive. 

The  uniform  act,  §  9025  Comp.  Laws,  adds  to  the  of- 
ficers in  foreign  countries  any 

Minister, 
Vice  Consul, 

Consular  agent  of  the  United  States  resident 
in  any  foreign  country  or  port  of  entry,  when 
certified  under  his  seal  of  office. 

Where  deeds  are  not  acknowledged,  provision  is  made 
for  proving  them  by  subscribing  witnesses. 

§8969-8975,  Comp.  Laws,  1897. 


Provision  is  also  made  for  temporary  filing  of  un- 
acknowledged deeds. 

§8976-8977,  Comp.  Laws,  1897. 

c  £  a.*£'fftr'-*«0*-     /7*7 

The  record  of  any  conveyance  executed  in  the  manner 
required  by  law  or  a  transcript  thereof  may  be  read  in 


<^*^* 

CONVEYANCES/'^^/  77 


evidence  in  any  court  in  the  state  without  further  proof, 

but  the  effect  may  be  rebutted  by  other  competent  testi- 

<8<       ^&  *f 

mony.  **+£,  ^^ 

§8990  Comp.  Laws,  1897.  ^^  ' 

e  )f  .  }*+<Ji  i  *ff-         i  *.$  &  F-H^ 

Any  insrument  executed  in  the  same  manner  as  a 
conveyance,  except  wills  and  promissory  notes,  is  ad- 
missible in  evidence  without  proof  of  execution. 

§10168  Comp.  Laws,  1897. 


Every  conveyance  of  real  estate  not  recorded  shall 
be  void  as  against  subsequent  purchasers  in  good  faith 
and  for  a  valuable  consideration  of  the  same  real  estate 
or  any  portion  thereof  whose  conveyance  shall  be  first 
recorded. 

§8988   Comp.   Laws,   1897. 

e  ?•  7fa*t  *+'*-—  "?  *-' 

Act  199,  P.  A.  1915,  has  added  to  this  section  : 

"The  fact  that  such  first  recorded  conveyance 
is  in  the  form  of  or  contains  the  terms  of  a  deed 
of  quitclaim  and  release  shall  not  affect  the  ques- 
tion of  good  faith  of  such  subsequent  purchasers 
or  be  of  itself  notice  to  him  of  any  unrecorded 
conveyance  of  the  same  real  estate  or  any  part 
thereof.  '  ' 

Conveyances  as  used  above  embrace  every  written 
instrument  by  which  any  estate  or  interest  in  land  is 
created,  aliened,  mortgaged  or  assigned  or  by  which 
the  title  of  any  real  estate  may  be  affected  in  law  or 
equity,  except  wills,  leases  for  less  than  three  years 
and  executory  contracts  for  the  sale  of  or  purchase  of 
land. 

§8994   Comp.    Laws,    1897. 


78  DEEDS. 

Land  contracts  are  within  the  recording  laws. 

§9038    Comp^  Laws,    1897. 
~~ 


/#,±  //71    3 

The  recording  laws  do  not  make  an  unrecorded  con- 
veyance void  between  the  parties.  They  only  operate 
when  the  rights  of  subsequent  purchasers  are  involved. 

Sinclair  vs.  Slawson,  44  Mich.,  123. 

The  law  requires  the  register  to  keep  entry  book  of 
deeds,  mortgages  and  a  reception  book  of  levies. 

§8979   Conm.   Laws,    1897. 


Instruments  are  to  be  considered  as  recorded  when 
they  are  noted  in  the  entry  books. 

§8980    Comp.   Laws,    1897. 
C-  £  -  7JU*-£,  't/f~'  //    7/Z- 

This  entry  is  notice,  though  the  instrument  is  incor- 
rectly recorded. 

It    supplies    deficiencies. 

Sinclair  vs.  Slawson,  44  Mich.,  123. 

Patents  from  the  United  States  do  not  come  within 
the  terms  of  the  recording  laws. 

Moran  vs.  Palmer,  13  Mich.,  375. 
Sands  vs.  Davis,  40  Mich.,  18. 

An  execution  levy  is  now  upon  the  same  footing  as  a 
deed. 

§9224   Comp.    Laws,    1897. 


BONAFIDE  PURCHASER.  79 

A  subsequent  purchaser  under  the  above  statute 
means  a  subsequent  purchaser  from  the  same  grantor. 

Smith  vs.  Williams,  44  Mich.,  244. 

A  grantee  with  actual  notice  of  a  prior  deed  or  mort- 
gage is  not  a  bona  fide  purchaser. 

Notice  to  an  agent  is  notice  to  the  principal. 
Russell  vs.  Sweezney,  22  Mich.,  238. 

Under  the  rule  if  an  attorney  has  knowledge  of  un- 
recorded conveyances,  his  client  is  bound  by  his  knowl- 
edge whether  disclosed  or  not. 

As  heretofore  stated  a  purchaser  under  a  quit  claim 
deed  prior  to  August  23rd,  1915,  is  not  a  good  faith  pur- 
chaser. 

This  rule  applies  only  to  the  purchaser  accepting  the 
quitclaim  deed. 

If  one  deriving  title  through  quit  claim  deeds  conveys 
to  another  by  warranty  deed,  the  latter  may  be  a  bona 
fide  purchaser. 

Otis  vs.  Kennedy,  107  Mich.,  312. 

If  the  rule  were  otherwise,  once  a  quitclaim  deed  en- 
tered into  a  chain  of  title,  that  title  could  never  again 
come  under  the  protection  of  the  recording  laws. 

If  one  is  a  bona  fide  purchaser  under  the  recording 
laws,  a  purchaser  who  had  knowledge  of  prior  defects 
in  the  title  can  purchase  and  stand  in  his  place  as  a 
bona  fide  purchaser. 

Godfrey  vs.  Disbrow,  Walk.,  260. 


80  DEEDS. 

Otherwise  the  title  of  a  bona  fide  purchaser  would 
only  be  a  protection  to  him  and  would  not  be  saleable. 

A  purchaser  from  a  purchaser  with  notice  can  be  a 
bona  fide  purchaser;  actual  notice  to  the  grantor  is  not 
actual  notice  to  his  grantee. 

Holcomb  vs.  Mosher,  50  Mich.,  252. 

You  will  observe  that  the  adage,  "one  can  convey  no 
better  title  than  he  holds,"  fails  when  the  recording 
laws  are  applied  and  that  the  contra  proposition  ob- 
tains. 

It  is  a  presumption  of  law  that  the  subsequent  pur- 
chaser who  first  records  his  deed  is  a  bona  fide  purchas- 
er without  notice  until  the  contrary  is  made  to  appear, 

Godfrey  vs.  Disbrow,  Walker,  260. 

Possession  of  land  is  notice  to  all  the  world  of  the 
occupant's  rights.  He  who  buys,  relying  on  the  record 
title,  without  investigation  of  possessory  rights,  buys 
subject  to  the  rights  of  the  occupant.  Cases  sustaining 
the  principle  can  be  found  through  the  reports  from  Har- 
rington's Chancery  to  the  last  decision  rendered  by  our 
court. 

There  is  an  exception  to  this  rule.  Where  a  grantor 
remains  in  possession  after  delivery  of  an  absolute 
deed,  his  possession  is  not  notice  of  an  interest  adverse 
to  his  deed. 

Bloomer  vs.  Henderson,  8  Mich.,  395. 
Me  Ewan  vs.  Kearney,  178  Mich.,  6. 


INTENDED  AS  SECURITY.  81 

This  always  seemed  to  me  a  rule  making  the  common 
practice  of  deeding  lands  and  taking  a  contract  back 
on  the  loan  of  money  a  hazardous  proceeding. 

An  instrument  not  executed  in  a  manner  entitling  it 
to  record  is  not  notice. 

Wing  vs.  Me  Dowell,  Walker  Chan.,  102. 
This  rule  has  not  been  rigidly  followed. 

Sections  9048  to  9051,  Comp.  Laws  of  1897,  were 
passed  in  1861  with  a  view  of  curing  the  blunders  of  the 
past  and  apparently  anticipated  that  the  conveyances 
of  the  future  would  not  be  infallible. 

Section  8980  of  the  recording  act  provides  that  all 
absolute  conveyances  not  intended  as  mortgages  shall 
be  recorded  in  books  set  aside  for  deeds  and  that  all 
mortgages  and  other  deeds  intended  as  securities  shall 
be  recorded  in  books  set  aside  for  mortgages. 

In  applying  this  statutory  rule  the  court  has  held  that 
an  owner  making  a  deed  of  land  to  a  third  person,  abso- 
lute upon  its  fee,  which  was  immediately  recorded  as  a 
deed,  the  third  person  giving  back  a  contract  to  recon- 
vey  the  land  on  payment  of  a  sum  of  money,  that  the 
deed  and  contract  constituted  a  mortgage  and  the  record 
of  the  deed  was  not  notice  to  a  subsequent  purchaser. 

Grand  Rapids  National  Bank  vs.  Ford,  143  Mich.. 
402. 


82  ESTATES. 


STATUTORY    REGULATION    OF    ESTATES     IN 

REAL  PROPERTY,  USES,  TRUSTS 

AND  POWERS. 

I  have  called  your  attention  to  some  of  the  statutory 
provisions  upon  these  subjects  and  their  importance  is 
such  that  possibly  a  quotation  of  some  of  the  statutes 
will  not  be  unwarranted. 


ESTATES  IN  REAL  PROPERTY. 

§8796  of  the  Compiled  Laws  provides: 


ff  , JT'  S^****  • "  ''•'•*          it  S  9   2— 

"Every  future  estate  shall  be  void  in  its  crea- 
tion which  shall  suspend  the  absolute  power  of 
alienation  for  a  longer  period  than  is  prescribed 
in  this  chapter;  such  power  of  alienation  is  sus- 
pended where  there  are  no  persons  in  being,  by 
whom  an  absolute  fee  in  possession  can  be  con- 
veyed. ' ' 

§8797  oflhe  Compiled  Laws  provides : 

"The  absolute  power  of  alienation  shall  not  be 
suspended  by  any  limitation  or  condition  what- 
ever, for  a  longer  period  than  during  the  con- 
tinuance of  two  lives  in  being  at  the  creation  of 
the  estate,  except  in  the  single  case  mentioned  in 
the  next  section."  (The  University  of  Michigan 
is  authorized  to  hold  in  perpetuity,  Public  Acts 
1899,  126.) 

§8798,  Sec.  16.  A  contingent  remainder  in  fee  may 
be  created  on  a  prior  remainder  in  fee,  to  take  effect  in 
the  event  that  the  persons  to  whom  the  first  remainder 
is  limited  shall  die  under  the  age  of  twenty-one  years, 
or  upon  any  other  contingency  by  which  the  estate  of 
such  persons  may  be  determined  before  they  attain 
their  full  age. 


EXPECTANT  ESTATES.  83 


§8799  prohibits  successive  estates  for  life  except  to 
persons  in  being,  and  provides  that  where  a  remainder 
is  limited  on  more  than  two  life  estates  all  life  estates 
after  the  first  two  shall  be  void  and  the  remainder  shall 
take  effect  on  the  death  of  those  persons. 

§8800  prohibits  the  creation  of  a  remainder  on  a  term 
of  years  except  the  remainder  be  for  the  whole  of  the 
residue  of  the  term.  *-*'  *****'**"  —  /  /  tr  "sr  6- 

§8802  prohibits  the  creation  of  a  contingent  remainder 
upon  a  term  of  years  unless  the  remainder  shall  vest 
within  two  lives  in  being,  tf  -*?•#**•/,  '9'{~  "  s' 

§8803  prohibits  the  limitation  of  a  life  estate  as  a 
remainder  on  a  term  of  years  except  to  a  person  in  be- 
ing at  the  creation  of  the  estate.  <?•/£*-  bu*A  /f'J  '  ' 

§8807  authorizes  the  creation  of  future  estates  in  the 
alternative. 

§8819  prohibits  the  accumulation  of  rents  and  profits 
of  real  estate  unless  the  accumulation  be  directed  to 
commence  at  the  creation  of  the  estate  out  of  which  the  c«JE-/X« 
rents  arise,  and  be  for  the  benefit  of  a  minor  or  minors    '*'*"" 
in  being  and  terminate  with  their  minority,  or 

The  accumulation  commences  within  the  expiration  of 
two  lives  in  being  and  during  the  minority  of  the  per- 
son to  be  benefited  and  terminate  with  the  minority. 

<*./• 

§8820  prohibits  the  creation  of  expectant  estates  ex-     1  4 

cept  such  as  are  authorized  by  Chapter  237,  Compiled      *  ' 
Laws. 


84  USES  AND  TRUST  POWERS. 


,USES  AND  TRUSTS  POWERS. 
*  Bi- 


sections 8829  and  8856  abolish  the  uses,  trusts  and 
powers  known  to  the  common  law  except  so  far  as  they 
are  authorized  by  Chapters  238  and  239  of  the  Compiled 
Laws. 

§8830  provides  that  all  existing  uses  are  confirmed  as 
legal  estates.  <=~  JT-  n***£  '!*--•'?*  c, 

§8831  provides  that  every  grant,  assignment  or  devise 
giving  the  grantee  actual  possession  of  the  land  with 
the  right  to  receive  the  rents  and  profits,  gives  the 
grantee  a  legal  estate  of  the  same  quantity  as  his  bene- 
ficial interest.  O»-X 


This  statute  abolishes  passive  trusts. 

§8832  provides  the  preceding  section  shall  not  de- 
stroy the  estate  of  a  trustee  where  the  title  of  the  trus- 
tee is  connected  with  some  power  or  disposition  or  ac- 
tual management.  C-*-  ^~~t 

§8833  provides  that  every  disposition  of  land  shall  be 
made  directly  to  the  person  in  whom  the  right  of  pos- 
session and  profits  shall  be  intended  to  be  vested  and 
not  to  any  other  to  the  use  of  or  in  trust  for  such  per- 
son. A  grant  contrary  to  the  inhibition  vests  no  estate 
in  the  trustee,  e  f.  y-hu**~L  .  '1C  -  /  '  f  <,  * 

The  last  two  sections  have  been  construed  by  the  New 
York  court  in 

LaGrange  vs.  L'  Amour  eaux,  1  Barb.  Ch.,  16. 
Kingo  vs.  Townsend,  36  N.  E.,  513. 


CREATION  AND  PURPOSE.  85 

In  the  former  case  when  a  deed  was  made  to  one  per- 
son for  the  use  and  benefit  of  several  other  persons,  one 
of  the  several  filed  a  bill  in  equity  to  compel  the  grantee 
named  in  the  deed  to  convey  to  the  beneficiary  his  in- 
terest in  the  estate.  The  court  dismissed  the  bill,  stat- 
ing that  under  the  statute  referred  to  the  party  named 
as  trustee  took  no  interest  in  the  land,  but  the  legal  title 
vested  in  the  beneficiaries. 

In  the  latter  case  the  court  held  that  where  the  party 
to  whom  land  was  conveyed  as  trustee  for  the  benefit 
of  others  also  had  a  beneficial  interest,  he  would  take 
the  legal  title  and  the  statutory  rule  would  not  apply. 

§8835  provides  that  where  a  grant  for  a  valuable  con- 
sideration is  made  to  one  person  and  the  consideration 
is  paid  by  another,  no  trust  results  in  favor  of  the  per- 
son paying  the  consideration.  c.  f. 


§8836  and  §8837  provide  that  this  rule  does  not  pre- 
vent creditors  impressing  the  land  with  a  trust  to  the 
extent  of  their  claims  nor  does  it  apply  where  the  gran- 
tee shall  have  taken  the  grant  in  his  own  name  without 
the  knowledge  or  consent  of  the  party  paying  the  con- 
sideration or  where  the  grantee  in  violation  of  a  trust 

purchases  the  land  with  the  money  of  another.  e-*->a*^/  f 

//  S"7  2- 

§8838  provides  that  no  implied  or  resulting  trust  shall 
be  alleged  or  established  to  defeat  the  title  of  a  pur- 
chaser for  value  without  notice,  c  -  ^  -  >n*-.w.  '  i 


§8839  specifies  the  purposes  for  which  trusts  in  lands 
may  be  legally  created,  viz:        <•- 

1.  To  sell  lands  for  the  benefit  of  creditors. 

2.  To   sell,  mortgage   or  lease  lands  for  the 


86  USES  AND  TRUST  POWERS. 

benefit  of  legatees  or  for  the  purpose  of  satisfy- 
ing any  charges  thereon. 

3.  To  receive  the  rents  and  profits  of  lands 
and  apply  them  to  the  use  of  any  person  during 
the  life  of  such  person  or  for  any  shorter  term 
subject  to  the  rules  prescribed  in  the  last  preced- 
ing chapter. 

4.  To  receive  the  rents  and  profits  of  lands 
and  to  accumulate  the  same  for  the  benefit  of  any 
married  woman  or  for  either  of  the  purposes  and 
within   the    limits    prescribed   in    the    preceding 
chapter. 

5.  For  the  beneficial  interest  of  any  person  or 
persons  when  such  trust  is  fully  expressed  and 
clearly  defined  on  the  face    of    the    instrument 
creating  it  subject  to  the  limitation  as  to  time 
prescribed  in  the  preceding  chapter. 

Any  trust  the  purpose  of  which  is  not  within  the  au- 
thority of  this  section  is  absolutely  void. 

The  fifth  subdivision  is  not  found  in  the  New  York 
statute.  This  distinction  must  be  remembered  in  ap- 
plying the  New  York  decisions. 

§8840  provides  that  a  devise  of  lands  to  an  executor 
or  trustee  to  be  sold  or  mortgaged  when  the  executor 
or  trustee  is  not  authorized  to  receive  the  rents  and 
profits,  give  not  title  but  only  a  power  to  sell  or  mort- 
gage and  the  land  descends  to  heirs  or  passes  to  dev- 
isees subject  to  the  execution  of  the  power. 

§8841  gives  rights  to  creditors  in  the  surplus  of  rents 
and  profits  from  a  trust. 


RESPONSIBILITY.  87 

C  v£ 
§8842  provides  when  a  trust  is  created  which  is  not 

authorized  by  the  statute  it  may  amount  to  a  power. 

§8844  provides  that  every  valid  trust  shall  vest  the 
title  to  the  land  in  the  trustee  that  the  cestui  que  trust-C-f- 
ent  shall  take  no  estate  in  the  land  but  may  enforce  his    // 
beneficial  right  in  equity. 

§8845  authorizes  one  creating  a  trust  to  declare  to^  ^' 
whom  the  land  shall  pass  upon  failure  or  termination 
of  the  trust. 

§8847  provides  that  no  person  beneficially  interested 
in  a  trust  for  the  receipt  of  the  rents  and  profits  of  landu  ^». 
can  assign  or  in  any  manner  dispose  of  such  interest,      t 
but  the  rights  and  interest  of  every  person  for  whose 
benefit  a  trust  for  the  payment  of  a  sum  in  gross  is 
created  are  assignable. 

The  New  York  court  decided  before  Michigan  bor- 
rowed this  section  that  "gross"  means  one  sum,  not 
several  fixed  sums. 

Hawley  vs.  James,  16  Wend.,  262. 

§8843  provides  that  if  a  trust  is  not  contained  or  de-      + 
clared  in  the  conveyance  to  the  trustee  the  deed  shall 
be  deemed  absolute  against  subsequent  creditors   and 
purchasers  from  trustee  for  value  without  notice. 

§8849  provides  when  the  trust  is  expressed  in  the  c*.£  &* 
conveyance  to  the  trustee,  that  every  sale  or  act  in  the  /'  * 
contravention  of  the  trust  shall  be  void. 

§8850  provides  that  one  paying  money  to  a  trustee     ^  ^. 
shall  not  be  responsible  for  the  malfeasance  of  the  trus- 
tee in  applying  the  fund.  - 


88  POWEES. 

»— 

§8851  provides  that  when  the  purposes  for  which  an 
express  trust  are  created  have  ceased,  the  estate  of  the 
trustee  shall  cease. 


POWERS. 

§8856  abolishes  powers  except  as  authorized  in  the 
sections  following. 

§8857  defines  power  as  an  authority  to  do  some  act  in 
relation  to  land  or  in  the  creation  of  estates  which  the 
owner  might  personally  do. 

i  &        §8858  provides  that  no  person  can  create  a  power  un- 
'  /        less  he  is  at  the  time  capable  of  alienating  some  estate 
in  the  land  to  which  the  power  relates. 

§8860  defines  a  general  power  as  an  authority  to  con- 
vey in  fee  to  any  one. 

§8861  provides  that  powers  are  special: 

1.  When  disposition  can  be  made  only  to  des- 
ignated persons. 

2.  When  the  estate  that  can  be  conveyed  is 
less  than  fee. 

|  iff 

fT*     s         §8862  defines  a  beneficial  power  as  one  in  the  execu- 

(  £»          tion  of  which  no  one  other  than  the  grantee  or  donee 
has  any  interest. 

§8864  provides  that  when  an  absolute  power  of  dis- 
position not  subject  to  a  trust  is  given  the  owner  of  an 
estate  for  life  or  years,  such  estate  shall  be  an  absolute 
fee  in  respect  to  the  rights  of  creditors  and  purchasers 


ASSIGNMENT  OF  THE  POWER.  89 

subject  to  any  future  estate  limited  in  case  the  power 
is  not  exercised. 

§8865  makes  the  same  provision,  though  no  estate  is 
granted  the  donee  of  the  power. 

§8866  provides  that  when  such  a  power  is  granted  and    rJZ/?++ 
no  remainder  limited,  the  donee  takes  an  absolute  fee.        /  /  £ 

§8867  provides  that  when  a   general  and  beneficial 
power  to  devise  the  inheritance  is  given  to  a  tenant  for 
life  or  years  he  shall  possess  an  absolute  power  of  dis-     /  / 
position  within  the  meaning  of  the  last  three  sections. 

§8868  provides  that  every  power  of  disposition  shall 
be  absolute  when  the  donee  may  in  his  life  time  dispose 
of  the  entire  fee  for  his  own  benefit. 

§8869  provides  that  if  the  donor  of  the  power  reserves  C  •* 

t  S    f     ^^ 

to  himself  the  right  of  revocation  he  is  still  deemed  the 
owner  in  fee  so  far  as  the  rights  of  creditors  and  pur- 
chasers are  concerned. 

§8870  provides  that  a  special  and  beneficial  power     //*  0 
may  be  granted: 

1.  To  a  married  woman  to  dispose  of  during 
marriage  any  estate  less  than  a  fee  belonging  to 
her  in  lands  to  which  the  power  relates. 

2.  To  a  tenant  for  life  of  the  lands  embraced 
in  the  power  to  make  leases  for  not  more  than 
twenty-one  years  and  to  commence  in  possession 
during  his   life. 

§8871  prohibits  the  life  tenant  assigning  the  power 
above  separate  from  his  life  estate  and  that  it  shall  pass 


90  POWEES. 

with  an  assignment  of  his  estate  unless  specifically  ex- 
cepted  and  when  so  excepted  it  shall  be  extinguished. 

§8872  provides  that  such  a  power  may  be  released  by 
<jr  the  life  tenant  to  the  person  entitled  to  the  next  expec- 

tant estate  and  such  a  release    shall    extinguish    the 
power. 

§8873  provides  a  mortgage  by  a  life  tenant  having 
power  to  lease  or  a  married  woman  holding  a  power  as 
above  does  not  extinguish  the  power  but  the  power  is 
bound  by  the  mortgage  in  the  same  manner  as  the  land 
embraced. 

»/i          §8874  provides: 

1.  That  the  mortgagee  is  entitled  in  equity  to 
the  execution  of  the  power  so  far  as  the  satisfac- 
tion of  the  debt  may  require. 

2.  That  any  subsequent  estate  created  by  the 
owner  in  execution  of  the  power  is  bound  by  the 
mortgage. 

fll  §8875  provides  that  only  such  beneficial  powers  as 

have  been  defined  in  the  preceding    sections    shall    be 
/  valid. 


» 


§8876  subjects  special  and  beneficial    power    to    the 
claims  of  creditors. 

|V 

§8877  provides  that  a  general  power  is  in  trust  when 

any  person  other  than  the  grantee  is  designated  as  en- 
I  titled  to  the  proceeds  of  a  sale  of  the  lands  under  the 

power  or  any  part  thereof. 


BENEFICIAL  INTEEEST.  91 

§8878  provides  that  a  special  power  is  in  trust,  when        ft  fa 
a  grant  under  ft  must  be  made  to  designated  persons 
or  persons  other  than  the  grantee  are  entitled  to  the 
benefit  of  its  execution. 

§8879  provides  that  the  execution  of  every  power  in      -  *, 
trust  unless  expressly  made  discretionary  is  imperative        . 
and  imposes  a  duty  that  equity  will  enforce. 


§8880  provides  that  a  power  in  trust  is  imperative  C-L 
though  the  donee  is  authorized  to  select  any  and  exclude  ->  / 
some  of  the  designated  beneficiaries. 

§8881  provides  that  when  a  power  is  to  be  executed  £./, 
in  behalf  of  several  persons  they  shall  share  equally  in    *>  L  > 
the  benefits  unless  a  contra  distribution  is  designated. 

§8882  provides  that  if  the  trustee  is  authorized  to  dis- 
tribute in  such  proportion  as  he  sees  fit  he  may  allot  the  C  /•  /** 
entire  fund  to  a  part  of  the  class  and  exclude  others.    //  &  / 

§8883  and  §8884  authorize  the  Court  of  Chancery  to 
execute  a  power  in  trust  in  event  of  the  death  of  the  e  *•  A 
donee  or  such  a  power  in  a  will  when  no  one  is  desig- 
nated for  the  purpose. 

§8885  makes  Sections  8850  to  8855,  relating  to  ex-  £.£  /** 
press  trusts,  applicable  to  powers.  //  &  j./ 


authorizes  the  Court  of  Chancery  to  compel  the 
execution  of  a  power  in  trust  for  the  benefit  of  creditors  ^ 
when  the  objects  of  the  trust  are  assignable.  f  / 

§8887  provides  that  the  beneficial  interest  in  power 
pass  by  an  assignment  for  the  benefit  of  creditors.     c.  £> 

f  f 


^, 


92  POWEKS. 

§8888  provides  that  the  grantor  in  any  conveyance 
may  reserve  to  himself  any  power  he  could  grant  to  an- 
other. 

^-  §8889  provides  that  powers  may  be  created  by  a 
clause  in  a  conveyance  of  some  estates  in  the  lands  to 
which  the  power  relates  or  by  a  devise  in  a  last  will 
or  testament. 

§8890  places  powers  within  the  operation  of  the  re- 
cording laws. 

ii(f  §8891  makes  powers  irrevocable  unless  the  right  of 
revocation  is  reserved  in  the  instrument  creating  the 
power. 

JUf '          §8892  makes  any  person  capable  of  holding  land  cap- 
able of  holding  a  power. 
-v  * 

§8894  provides  that  when  a  power  is  vested  in  several, 
all  surviving  must  unite  in  its  execution. 

§8895  requires  a  written  instrument,  sufficient  to  pass 
title  to  land,  for  the  execution  of  a  power. 
/ 

§8896  provides  that  every  instrument  except  a  will 
made  in  execution  of  a  power  shall  be  deemed  a  con- 
veyance and  subject  to  the  statutes  relative  to  the  exe- 
^cution  and  recording  of  deeds  and  mortgages. 

§8897  provides  that  a  power  to  alienate  land  by  will 
can  only  be  exercised  through  that  medium. 


-  ,  ? 
*r~ 


contains  a  similar  mandate  as  to  the  execution 
of  a  power  to  alienate  by  grant. 


PROVISIONS  OF  WILLS.  93 

§8990  prohibits  the  donor  from  dispensing  with  the   O  K.  • " 
statutory   requirements   in  the   execution  of   a  power.    /  /  £ 

§8901  provides  if  the  grantor  direct  formalities  in  the-  * 
execution  of  a  power  other  than  those  required  by  the  //  £  3 
statute  they  may  be  ignored. 

/•   J*    T/i 
§8902  provides  that  nominal  conditions  not  affording^* " 

substantial  benefit  annexed  to  a  power  may  be  disre- 
garded. 

§8903  provides  that  the  intention  of  the  donor  of  a       £t  L 
power  shall  be  observed  as  to  mode,  time  and  manner 
of  execution  so  far  as  it  does  not  conflict  with  the  pro-    *  *  * 
vision  of  the  chapters  on  powers. 

§8904  provides  that  when  the  consent  of  a  third  per- 
son is  requisite  to  the  execution  of  a  power  that  such 
consent  shall  be  expressed  in  the  instrument  by  which  .  y 
the  power  is  executed  or  certified  in  writing  on  the  in-  ,; 
strument  under  the  signature  of  the  party.  Such  con- 
sent must  be  executed  and  acknowledged  in  the  same 
manner  as  a  conveyance  to  entitle  the  instrument  to  be 
recorded. 

§8905  provides  that  a  grant  by  the  donee  of  a  power^*"  ^ 
in  excess  of  his  authority  shall  be  valid  to  the  extent  ' 
he  was  authorized. 

§8906  provides  that  it  is  unnecessary  to  recite  or  re- 
fer  to  a  power  in  the  instrument  used  in  its  exercise. 

§8907  provides  that  the  will  of  a  testator  purporting 

to  devise  all  his  estate  shall  pass  land  which  he  was 

C?   ^*  >L 
authorized  by  a  power  to  devise,  in  the  absence  of  an 

intent  to  the  contrary  expressed  or  necessarily  implied.  '  '  **  ^- 


94  POWERS. 

§8909  provides  that  a  power  granted  by  parent  to  a 
descendant  shall  be  an  advancement  to  the  same  extent 
and  under  the  same  circumstances  that  a  gift  of  real 
&  or  personal  estate  would  be  an  advancement. 

"§8910  provides  the  date  for  the  computation  of  time 
which  alienation  may  be  suspended  by  a  power  is  the 
date  of  the  instrument  creating  the  power  and  not  the 
date  of  the  instrument  used  in  exercising  the  power. 

§8911  provides  that  no  estate  can  be  created  by  the 
^  execution  of  a  power  which  the  person  could  not  have 

ir     /  taken  under  the  instrument  creating  the  power. 

§8913  and  §8914  authorize  the  Court  of  Equity  to 
^  remedy  a  defective  execution  of  a  power  at  the  suit  of 

0  **  7         beneficiaries   or   purchasers. 
'     ^ 

§8915  provides  that  the  power  of  sale  in  a  mortgage 
/          passes  to  the  assignee  or  other  person  entitled  to  the 
money  secured. 

ut  ^ 

§8916  provides  that  the  statutory  provisions  relative 
to  power  shall  not  apply  to  simple  powers  of  attorney 
to  convey  lands. 

The  statutory  provisions  reviewed  affect  conveyanc- 
ing in  that  they  prohibit  the  creation  of  certain  inter- 
est in  land,  regulate  trusts  and  powers,  define  certain 
of  the  formalities  incident  to  particular  conveyances, 
and  establish  rules  and  limitations  which  if  violated  will 
render  the  most  carefully  drawn  conveyance  a  legal  dis- 
aster. 

Trusts  and  powers  are  distinguished  in  that  an  ex- 


< 


SUSPENSION  OF  ALIENATION.  95 

press  trust  requires  title  to  real  estate  in  the  trustee 
while  title  in  the  donee  of  a  power  is  not  requisite. 

Where  the  donee  of  a  power  is  the  absolute  and  bene- 
ficial owner  of  the  fee,  the  power  is  automatically 
merged  in  the  fee. 

A  trustee  may  hold  the  legal  title  and  a  power  at  the 
same  time;  such  a  coincidence  will  not  effect  a  merger. 


SUSPENSION  OF  ALIENATION. 

I  have  referred  you  to  Mr.  Chaplin  for  information 
upon  this  subject  and  I  will  only  call  your  attention  to 
some  of  his  rules  and  principles  and  a  few  Michigan 
cases  illustrating  their  application. 

This  rule  arises  from  the  application  of  the  following 
sections  of  the  Compiled  Laws  of  1897,  viz : 

§8796.    Every  future  estate  shall  be  void  in  its  crea- 
tion, which  shall  suspend  the  absolute  power  of  aliena-  4*  *>  s* 
tion  for  a  longer  period  than  is  prescribed  in  this  chap- 
ter; such  power  of  alienation  is  suspended  when  there     /"' 
are  no  persons  in  being,  by  whom  an  absolute  fee  in 
possession  can  be  conveyed. 

§8797.    The  absolute  power  of  alienation  shall  not  be 
suspended  by  any  limitation  or  condition  whatever,  for 
a  longer  period  than  during  the  continuance  of  two  lives^-4*  " 
in  being  at  the  creation  of  the  estate,  except  in  the  sin-    ff  •*"" 
gle  case  mentioned  in  the  next  section. 

§8798.    A  contingent  remainder  in  fee  may  be  created       ~    *. 
on  a  prior  remainder  in  fee,  to  take  effect  in  the  event 

,9  sr  3 


96  SUSPENSION  OF  ALIENATION. 

that  the  persons  to  whom  the  first  remainder  is  limited 
shall  die  under  the  age  of  twenty-one  years,  or  upon  any 
other  contingency  by  which  the  estate  of  such  persons 
may  be  determined  before  they  attain  their  full  age. 

§8839.     Express  trusts  may  be  created  for  any  or 
either   of   the   following   purposes: 

1.  To  sell  lands  for  the  benefit  of  creditors. 

2.  To  sell,  mortgage  or  lease  lands,  for  the 
benefit  of  legatees,  or  for  the  purpose  of  satisfy- 
ing any  charge  thereon. 

3.  To  receive  the  rents  and  profits  of  lands, 
and  apply  them  to  the  use  of  any  person,  during 
the  life  of  such  person,  or  for  any  shorter  term, 
subject  to  the  rules  prescribed  in  the  last  pre- 
ceding  chapter. 

4.  To  receive  the  rents  and  profits  of  lands, 
and  to  accumulate  the  same  for  the  benefit  of  any 
married  woman,   or  for  either  of  the  purposes 
and  within  the  limits  prescribed  in  the  preceding 
chapter. 

5.  For  the  beneficial  interest  of  any  person 
or  persons,  when  such  trust  is  fully  expressed, 
and  clearly  defined  upon  the  face  of  the  instru- 
ment creating  it,  subject  to  the  limitations  as  to 
time  prescribed  in  this  title. 

§8847.  No  person  beneficially  interested  in  a  trust  for 
the  receipt  of  the  rents  and  profits  of  lands  can  assign 
or  in  any  manner  dispose  of  such  interest;  but  the  rights 
and  interest  of  every  person  for  whose  benefit  a  trust 
for  the  payment  of  a  sum  in  gross  is  created,  are  as- 
signable. 


VESTING  is  THE  CONTROLLING  FEATURE.         97 

§8910.  The  period  during  which  the  absolute  right 
of  alienation  may  be  suspended  by  any  instrument  in 
execution  of  a  power,  shall  be  computed  from  the  time 
of  the  creation  of  the  power,  and  not  from  the  date  of 
such  instrument.  /  / 

There  are  two  primary  elements  to  be  considered, 
which  are  formulated  by  Mr.  Chaplin  into  two  rules, 
viz: 

"Rule  I.  ALIENABILITY — The  power  of  convey- 
ing the  absolute  fee  in  possession  shall  not  be 
suspended  beyond  the  statutory  period." 

Under  this  rule  he  points  out : 

(a)  "It  affects  all  estates,  interests,  rights  and 
possibilities  of  every  character  which  are  capable 
of  interfering  with  the  power  of  conveying  an 
absolute  fee  in  possession." 

(b)  "It  does  not  insist  upon  vesting  but  abso- 
lute alienability." 

The  distinction  suggested  under  the  second  subdivi- 
sion is  not  generally  appreciated  by  lawyers  or  jurists. 

"Rule  II.  VESTING — Estates  in  remainder 
shall  be  so  limited  that  within  the  statutory  pe- 
riod, if  ever,  they  must  vest  in  interest." 

Under  this  rule  he  points  out : 

"The  rule  applies  only  to  remainders,  but  in- 
sists not  only  on  absolute  alienability  but  also 
upon  vesting." 

In  the  examination  of  decided  cases  you  will  often 
meet  the  dictum  or  rule  that  vesting  alone  is  the  con- 
trolling feature.  Ordinarily  a  vested  future  remainder 


98  SUSPENSION  OF  ALIENATION. 

is  alienable,  but  a  trust  may  be  absolutely  vested  and 
be  inalienable. 

Alienability  in  connection  with  a  trust  means  more 
than  alienability  of  the  specific  lands  in  question.  There 
may  be  power  to  alienate  the  specific  land,  but  if  the 
proceeds  are  held  beyond  the  statutory  period  the  trans- 
action is  within  the  rule. 

Palms  vs.  Palms,  68  Mich.,  355. 
Niles  vs.  Mason,  126  Mich.,  482. 

Do  not  permit  the  apparent  contra  rule  in  Thatcher 
vs.  St.  Andrew's  Church,  37  Mich.,  264,  to  mislead  you. 
In  the  Thatcher  case,  as  was  pointed  out  by  Justice 
Champlin  in  the  Palms  case  and  again  in  the  Niles  case, 
the  trust  terminated  with  the  exercise  of  the  power  of 
sale  and  the  proceeds  were  distributed  to  the  beneficiary, 
not  held  in  trust. 

Where  the  power  of  sale  is  an  imperative  direction, 
and  amounts  to  an  equitable  conversion,  it  will  avoid 
the  rule. 

Ford  vs.  Ford,  80  Mich.,  42. 

The  statutory  period  must  be  directly  or  indirectly, 
but  ultimately,  measured  by  lives  in  being.  No  terms 
of  years  alone  can  be  a  valid  measure  of  a  trust  term. 

Casgrain  vs.  Hammond,  134  Mich.,  419. 
State  vs.  Holmes,  115  Mich.,  456. 
Farrand  vs.  Petit,  89  Mich.,  673. 

The  person  who  receives  rents  and  profits  of  land 
from  a  trustee  cannot  release  or  convey.  It  follows  that 
such  an  interest  is  inalienable. 

§8847  Comp.  Laws,  1897. 


CONTENTS  OF  MORTGAGES.  99 

Trusts  authorized  under  subdivisions  1  and  2  of  sec- 
tion 8839  never  suspend  alienation,  while  those  under 
the  remaining  subdivisions  may,  particularly  when  they 
come  within  the  prohibition  of  section  8847. 

An  annuity  payable  by  a  trustee  from  rents  and  prof- 
its of  land  was  held  to  count  as  a  life  and  to  suspend 
alienation,  in 

Wilson  vs.  O'Dell,  58  Mich.,  533. 
Dean  vs.  Mumford,  102  Mich.,  510. 
Niles  vs.  Mason,  126  Mich.,  482. 

Cole  vs.  Lee,  143  Mich.,  207,  would  seem  opposed  to 
the  foregoing  rule,  but  in  this  case  the  annuities  were 
not  charged  upon  rents  and  profits  of  land,  but  upon  the 
body  of  the  estate  and  properly  come  within  subdivision 
2  of  the  statute. 

Failure  of  a  remainder  to  vest  in  interest  is  illustrat- 
ed in  a  specific  devise  of  distinct  parcels  of  land  to 
three  daughters  with  remainder  over  to  the  body  heirs 
of  all  three  daughters. 

The  will  was  held  void  as  during  the  lives  of  the  three 
daughters  it  could  not  be  determined  who  would  be  their 
body  heirs  and  there  were  no  persons  in  being  who  could 
convey  an  absolute  fee. 

Trufant  vs.  Nunnelly,  106  Mich.,  554. 

With  these  brief  suggestions,  I  again  refer  you  to 
Mr.  Chaplin,  calling  your  attention  to  Act  280,  P.  A.. 
Mich.,  1915,  under  which  charitable  and  educational 
trusts  are  permitted  in  perpetuity. 

We  will  devote  a  few  words  to  the  subject  of  the  con- 


100  MORTGAGES. 

tents  of  mortgages,  leases  and  executory  contracts  of 
sale.  Substantially  the  same  rules  as  to  form,  manner 
of  execution,  interpretation  that  have  been  given  apply 
to  them. 


MORTGAGES. 

Mortgages  were  originally  conveyances  of  land  in  fee, 
but  upon  condition  that  upon  the  payment  of  a  certain 
sum  of  money  and  interest  the  grant  would  be  void; 
that  is,  they  were  grants  to  be  defeated  upon  perform- 
ance of  a  condition  stated  in  the  deed. 

They  originally  passed  the  legal  title  to  the  lands.  The 
modern  doctrine  is  that  they  merely  create  a  lien  upon 
lands.  The  forms  of  mortgages  in  common  use  follow 
the  statutory  form  rather  than  the  grant  upon  condition. 
I  refer  to  the  same  statute  which  provides  the  statuory 
form  of  deeds. 

Mortgages,  in  addition  to  the  conditional  grant  of  the 
premises  or  the  statutory  substitute,  generally  contain 
covenants : 

1.  To  pay  a  certain  sum  of  money  with  in- 
terest payable  at  fixed  periods. 

2.  To  pay  all  taxes  assessed  against  the  mort- 
gaged lands. 

3.  To  keep  the  improvements  upon  the  land 
insured  against  loss  or  damage  by  fire  for  the 
benefit  of  the  mortgagee. 

4.  Sometimes  a  covenant  to  pay  an  attorney 
fee  in  event  of  foreclosure. 

5.  An  agreement  that  the  the  mortgagee  may 
pay  any  tax  or  insurance  premium  not  paid  by 


TAX  CLAUSES.  101 

the  mortgagor  and  for  the  repayment  with  inter- 
est thereon  at  the  highest  legal  rate. 

6.  A  provision  that  if  default  is  made  in  pay- 
ment of  any  installment  of  principal  or  interest 
tax  or  insurance  premium  the  entire  amount  ow- 
ing may  be  declared  due. 

7.  A  power  of  sale,  which  authorizes  the  mort- 
gagee, in  event  of  default,  to  sell  the  premises  at 
public  auction,  to  realize  the  amount  due. 

A  note  or  bond  is  usually  given  in  connection  with 
the  mortgage.  This  is  the  evidence  of  indebtedness  and 
the  mortgage  collateral  security  for  its  payment. 

Notes  and  bonds  bear  interest  but  "  interest  at  six  per 
cent  per  annum"  is  payable  at  the  maturity  of  the  debt 
unless  the  instrument  fixes  periodical  payments. 

A  transfer  of  a  note  secured  by  mortgage  carries  the 
mortgage. 

The  clause  for  the  payment  of  taxes  is  not  necessary 
as  the  mortgagee  would  have  the  right  to  protect  his 
security  against  such  a  claim  and  add  the  amount  paid 
to  the  mortgage  debt  without  such  an  agreement,  but 
he  could  collect  interest  on  his  outlay  only  at  the  legal 
rate. 

Sometimes  a  provision  is  added  to  the  tax  clause  re- 
quiring the  mortgagor  to  pay  all  taxes  assessed  against 
the  mortgage  interest.  Such  clauses  are  dangerous.  If 
the  tax  with  the  interest  exceeds  the  rate  of  interest 
legally  permitted,  the  instrument  will  be  usurious  and 
all  interest  forfeited. 


102  MORTGAGES. 

The  insurance  clause  is  important;  without  it  the 
mortgagee  would  be  compelled  to  insure  at  his  own  ex- 
pense or  take  the  risk  of  fire  and  look  to  the  land  alone. 

The  insertion  of  a  provision  for  attorney  or  solicitor 
fees  in  event  of  foreclosure  is  useless,  such  undertakings 
being  under  the  Michigan  rules  unenforcible  penalties. 

If  the  mortgage  be  foreclosed  by  exercise  of  the  pow- 
er of  sale,  the  statute  authorizes  fixed  attorney  fees  to 
be  added. 

§11152  Comp.  Laws,  1897. 


If  the  mortgage  be  foreclosed  in  equity  the  attorney 
fee  provided  by  the  rules  of  court  may  be  taxed.  No 
other  attorney  fee  can  be  recovered. 

If  the  provision  permitting  the  entire  debt  to  be  de- 
clared due  is  omitted,  foreclosure  can  only  be  had  for 
the  amount  actually  due  and  the  lands  sold  for  this 
amount  subject  to  the  amount  to  become  due. 

The  court  is  given  a  discretionary  power  to  sell  for 
sum  not  due  by  statute. 

§528-531  Comp.  Laws,  1897. 

e.£.**JLn'*          /A*//-~  -      *&?*-»' 

Unless  the  mortgage  contains  a  power  of  sale  it  can 
only  be  enforced  by  a  foreclosure  in  equity.  The  power 
in  the  mortgage  is  the  foundation  of  the  foreclosure  by 
advertisement. 


LEASES.  103 


LEASES. 

Leases  are  grants  for  a  term  of  years  rather  than  in 
fee  and  resemble  the  old  feudal  tenure  in  that  rental  is 
reserved. 

The  ordinary  lease  contains : 

1.  The  grant  of  the  premises  for  a  term  of 
years. 

2.  A  condition  that  entry  may  be  made  and 
the    premises    repossessed    if    any    covenant    is 
broken. 

3.  A  covenant  to  pay  a  certain  rental  at  a 
certain  time  or  times. 

4.  Usually  a  covenant  by  the  tenant  not  to 
assign  or  sublet. 

5.  A  covenant  by  the  tenant  to  keep  the  prem- 
ises in  repair. 

6.  A  covenant  to  quiet  enjoyment. 

7.  A  covenant  to  use  the  premises  for  a  par- 
ticular purpose. 

The  ordinary  forms  specify  the  purpose  for  which  the 
premises  are  leased  but  generally  omit  a  covenant  by 
the  tenant  to  use  the  premises  only  for  such  a  purpose. 

It  is  safer  to  embody  an  express  covenant  of  the  ten- 
ant to  use  the  premises  only  for  a  specific  purpose,  then 
the  right  of  re-entry  for  a  breach  is  beyond  dispute. 

The  lease  should  contain  a  reservation  to  the  land- 
lord of  the  right  to  enter  and  inspect  the  condition  of 
the  premises  and  to  make  repairs  if  he  deems  the  tenant 
negligent  in  his  duties  in  this  respect. 


104  LEASES. 

The  landlord  is  as  much  a  trespasser  as  a  stranger 
should  he  enter  the  demised  premises  without  the  ten- 
ant's consent. 

Leases  of  buildings  for  commercial  or  manufacturing 
purposes  often  contain  and  should  contain  various  man- 
dates and  reservations.  For  instance  provisions: 

Requiring  the  tenant  to  keep  and  obey  all  po- 
lice and  sanitary  regulations  imposed  by  any 
state  or  municipal  authority. 

To  observe  all  reasonable  regulations  imposed 
by  any  underwriter  as  a  basis  of  the  insurance 
rate  upon  the  building. 

Not  to  permit  any  inflammable  or  combustible 
matter  to  accumulate  upon  the  premises. 

A  provision  that  the  term  shall  end  at  the  op- 
tion of  the  landlord  in  event  of  insolvency  of  the 
tenant. 

The  landlord  should  never  covenant  in  the  lease  to 
make  repairs  of  any  kind.  Such  a  covenant  will  sub- 
ject him  to  liability  for  damages  to  the  tenant  or  others 
for  a  defective  condition  of  the  premises.  There  is  no 
such  liability  unless  there  is  such  a  covenant  in  the 
lease.  A  dangerous  condition  of  the  premises  might 
exist  for  months  without  a  landlord  having  any  notice 
or  knowledge  of  the  situation. 

There  is  no  limitation  upon  a  period  or  term  of  a 
lease  except  that  contained  in  the  constitution  in  case 
of  agricultural  lands,  though  a  lease  for  years  may  of- 
fend the  statutory  provisions  limiting  the  suspension  of 
alienation. 

§8805  Comp..  Laws,  1897. 

Art.  XVI.,  Sec.  10,  Constitution,  1907. 


MEMOEANDUM  OF  SALE.  105 


MEMORANDUM  OF  SALE. 

The  preliminary  instrument  in  the  conveyance  of  a 
parcel  of  land  is  usually  a  memorandum  of  sale  to  make 
a  valid  contract  under  the  terms  of  the  statute  of 
frauds. 

The  test  of  sufficiency  of  such  instruments  is,  does 
the  memorandum  give  the  terms  of  the  proposed  sale 
sufficiently  complete  to  enable  a  court  to  enforce  the 
contract  without  resorting  to  other  evidence? 

It  should  acknowledge  receipt  of  any  part  of  the  pur- 
chase money  paid,  describe  the  land,  state  the  condi- 
tion of  the  seller's  interest,  whether  clear  or  encum- 
bered, and  if  encumbered  what  disposition  is  to  be  made 
of  the  encumbrance;  state  the  purchase  price  and  the 
terms  of  payment  of  the  price,  if  payment  is  deferred 
and  to  bear  interest,  the  rate  of  interest  and  when  pay- 
able; contain  the  seller's  agreement  to  sell  the  land  to 
the  purchaser  on  the  terms  stated  and  to  deliver  a  mar- 
ketable title  and  fix  the  time  for  consummation  of  the 
contract.  It  usually  provides  for  the  delivery  of  and 
time  for  examination  of  the  abstract.  It  should  be 
signed  by  the  owner  of  the  land  and  his  wife,  if  the  title 
is  joint  or  the  land  a  homestead. 

The  purchaser's  oral  agreement  to  buy  is  a  binding 
contract. 


106  OPTIONS. 

OPTIONS. 

Instead  of  a  preliminary  memorandum  of  sale  for  the 
purposes  of  the  statute  of  frauds,  an  option  is  some- 
times made.  This  is  a  contract  where  the  seller,  for  a 
consideration  varying  from  the  nominal  consideration 
of  a  dollar  to  any  sum,  agrees  with  the  purchaser  to  sell 
certain  lands  on  certain  terms  to  the  purchaser  at  any 
time  within  a  certain  period.  The  seller  is  bound  by  the 
contract  to  sell,  but  the  purchaser  may  complete  the  con- 
tract, or  if  he  fails  so  to  do  within  the  time  fixed,  the 
contract  is  at  an  end.  It  is  simply  a  right  to  purchase 
for  a  fixed  time.  This  instrument  should  contain  the 
substance  of  the  memorandum  of  sale  as  to  description, 
purchase  price,  terms  .of  payment,  condition  of  title  as 
to  being  clear  or  encumbered,  etc.,  and  contain  an  agree- 
ment by  the  purchaser  to  sell  the  land  to  the  purchaser 
or  his  assigns  at  any  time  on  or  before  a  fixed  day  rath- 
er than  for  a  period  of  time.  If  it  be  a  thirty-day  op- 
tion, fix  the  time  a  month  in  advance,  as  January  12 
next,  at  12  o'clock  noon,  and  avoid  computation  of  time. 

It  should  provide  that  it  may  be  exercised  within  the 
time  fixed  by  an  acceptance  in  writing  accompanied  by 
a  deposit  on  account  of  the  purchase  price,  and  provision 
for  delivery  of  abstract  and  time  for  consummation.  The 
option  must  have  a  consideration.  The  money  paid  for 
the  option  should  not  in  the  terms  of  the  option  be  ap- 
plied upon  the  purchase  price.  If  you  take  a  thirty 
days'  option  at  $50,000  and  pay  $1,000  for  the  option, 
pay  your  $1,000  and  take  the  option  for  $49,000. 


EXECUTOKY    CONTRACTS   OF    SALE.  107 

EXECUTORY  CONTRACTS  OF  SALE, 

or  what  are  commonly  termed  land  contracts,  generally 
contain  parts  of  the  deed,  mortgage,  lease  and  memo- 
randum, viz: 

1.  The    agreement    to    sell   certain   described 
land  by  one  party  to  another  for  a  certain  sum. 

2.  An  agreement  by  the  vendee  to  purchase 
the  land  and  pay  the  purchase  money  at  a  certain 
time  or  certain  times,  with  interest,  payable  at 
certain  intervals. 

3.  A  tax  and  insurance  clause  as  in  a  mort- 
gage. 

4.  An  agreement  by  the  vendor  to  deliver  an 
abstract  of  title. 

5.  An  agreement  by  the  vendor  to  convey  the 
land  free  from  incumbrances  on  performance  by 
the  vendee. 

6.  They  should  contain  an  agreement  permit- 
ting all  sums  owing  to  be  declared  due  if  de- 
fault is  made. 

7.  An  agreement  that  the  vendee  shall  have 
possession  of  the  premises  while  he  is  not  in  de- 
fault in  carrying  out  the  terms  of  this  contract. 

8.  A  provision  for  forfeiture  and  repossessing 
the  premises. 

9.  The  contract  usually  contains  a  provision 
prohibiting  an  assignment  by  the  vendee  of  the 
contract  or  a  sale  of  his  interest  in  the  land. 

If  the  contract  does  not  contain  an  agreement  by  the 
vendor  to  furnish  an  abstract  he  is  under  no  obligation 
to  do  so. 


108  EXECUTORY  CONTRACTS  OF  SALE. 

What  has  been  said  in  connection  with  deeds  as  to 
parties  and  description  of  lands  will  apply  to  mort- 
gages, leases  and  contracts. 

Unless  the  contract  of  sale  by  its  terms  gives  the  ven- 
dee the  right  of  possession  he  has  no  such  right. 

Unless  the  contract  gives  the  vendee  the  right  of  pos- 
session, the  machinery  of  the  statutes  regulating  sum- 
mary proceedings  to  recover  possession  (§11164-11183, 
Comp.  Laws)  cannot  be  invoked  to  recover  possession. 

The  statement  in  the  contract  of  the  nature  of  the 
rights  of  the  vendee  in  default,  whether  a  tenant  at  will 
or  a  tenant  holding  over  without  permission,  determines 
the  notice  necessary  to  be  given  before  a  forfeiture  can 
be  enforced. 

Murphy  vs.  Me  Intyre,  143  Mich.,  342. 

It  may  be  said  that  whenever  the  amount  paid  on  ac- 
count of  the  purchase  price  by  the  vendee  substantially 
exceeds  the  fair  rental  value  of  the  premises  that  the 
only  safe  method  of  extinguishing  the  vendee's  right 
is  what  is  generally  termed  a  "foreclosure  of  the  con- 
tract." 

The  proceeding  for  foreclosure  is  rather  a  proceeding 
in  equity  to  enforce  a  vendor's  lien. 

Fitzhugh  vs.  Maxwell,  34  Mich.,  138. 

The  above  decision  contains  a  learned  discussion  of 
the  rights  of  parties  to  an  existing  contract  for  the  sale 
of  land  and  should  be  read. 

Be  careful  in  attempting  to  enforce  or  forfeit  such 


USUAL  METHOD.  109 

contracts  as  were  made  during  the  time  Act  200,  Public 
Acts  of  Michigan,  1911,  was  in  force.  This  act  pro- 
vided an  exclusive  remedy  under  certain  contracts  and 
incidentally  gave  the  purchaser  a  right  of  redemption 
for  one  year.  The  act  was  repealed  at  the  session  of 
1913. 

Our  courts  have  held  that  a  right  of  redemption  is  a 
part  of  a  contract  and  that  it  is  not  in  the  power  of 
the  legislature  to  destroy  such  right  by  repealing  the 
act  and  changing  the  remedy. 

Cargill  vs.  Powell,  1  Mich.,  369. 

Upon  the  execution  of  a  contract,  the  interest  of  the 
purchaser  is  real  estate,  while  that  of  the  seller  is  a 
security  for  purchase  money.  The  legal  title  of  the  land 
remains  in  the  vendor,  but  in  trust  as  security  for  the 
purchase  money.  Upon  the  administration  of  estates, 
the  interest  of  the  vendor  is  personal  property  subject 
to  distribution  as  such,  while  the  interest  of  the  vendee 
is  real  estate  and  descends  as  such. 

The  usual  method  of  transferring  the  interest  of  a 
vendee  is  an  assignment  of  the  contract.  The  clause 
prohibiting  an  assignment  by  the  vendee  is  of  doubtful 
validity.  Our  court  has  never  directly  passed  upon  it. 
The  New  Jersey  court  has  in  effect  held  it  invalid. 

When  we  consider  the  rights  of  the  parties  in  the 
property  it  seems  to  me  that  the  proper  method  of 
transferring  the  vendee's  interest  is  the  usual  warranty 
deed  subject  to  the  incumbrance  for  the  purchase  money 
with  a  covenant  by  the  grantees  to  assume  and  pay  the 
same.  The  vendor's  own  land,  why  not  grant  it  by  deed 
the  same  as  if  the  land  was  subject  to  a  mortgage? 


110  DRAFTING  OF  CONVEYANCE. 

I  have  met  with  objection  to  such  a  course,  but  the 
same  person  has  invariably  consented  to  the  execution 
of  an  assignment  containing  all  the  elements  of  a  "full 
covenant  warranty  deed  other  than  its  form. 

Suppose  a  contract  was  made  in  1900  and  assigned  in 
1914,  and  the  assignee  paid  the  balance  of  the  purchase 
money  in  1915.  He  would  receive  a  deed  with  the  cove- 
nants limited  to  1900.  If  a  tax  or  other  incumbrance 
attached  in  1913  through  the  omission  of  the  original 
vendee,  the  purchaser  would  have  no  redress  under  the 
covenants  in  his  deed.  There  are  no  covenants  in  the 
assignments  in  common  use.  He  would  have  no  re- 
dress. 

The  vendee  is  seized  of  an  equitable  title  and  it  is  not 
subject  of  dower.  Dower  at  common  law  never  at- 
tached to  an  equitable  title. 

Stephens  vs.  Leonard,  122  Mich.,  125. 
The  homestead  right  will  attach  to  an  equitable  title. 

THE  PRACTICAL  DRAFTING  OF  CONVEYANCES. 

A  few  words  upon  the  practical  drafting  of  convey- 
ances. The  stationer  supplies  printed  forms  of  nearly 
every  conveyance  in  common  use.  There  is  no  objection 
to  their  use,  but  in  using  them  do  not  take  for  granted 
because  the  particular  form  is  labeled  deed,  mortgage, 
contract,  option,  release,  that  by  merely  filling  in  the 
blank  spaces  with  names,  dates,  descriptions,  terms,  that 
the  result  will  be  the  desired  conveyances. 

Nearly  all  the  forms  of  deeds  of  land  are  sufficient 
for  a  simple  conveyance  in  fee  simple  by  one  person  to 
another. 


CONDITIONAL,  DEED.  Ill 

Scrutinize  the  mortgge  blank  and  determine  whether 
it  contains  the  necessary  covenants  as  to  the  payment 
of  taxes,  maintenance  of  insurance;  whether  it  author- 
izes the  mortgagee  to  declare  the  entire  debt  due  if  de- 
fault is  made  in  the  payment  of  any  installment  of  inter- 
est or  other  covenant.  Does  it  contain  a  power  of  sale? 
Is  the  interest  clause  so  framed  that  it  is  free  from 
usury?  Does  it  contain  the  provisions  that  are  inserted 
in  mortgages  taken  by  financial  institutions  in  the  lo- 
cality? If  your  client  should  desire  to  dispose  of  his 
security  it  will  not  increase  his  confidence  in  you  if  the 
banker  refuses  to  purchase  because  of  the  form  of  se- 
curity. 

What  are  the  remedies  of  the  vendor  under  the  par- 
ticular blank  form  of  a  land  contract  which  you  pur- 
chase? When  in  default,  is  the  vendee  a  tenant  at  will 
entitled  to  three  months '  notice  or  a  tenant  holding  over 
without  permission  after  his  term  has  expired  and  en- 
titled to  reasonable  notice  of  forfeiture?  If  he  makes 
default  must  you  enforce  your  contract  for  two  or  three 
monthly  payments  or  does  the  form  authorize  the  ven- 
dor to  declare  the  entire  amount  owing  due  and  pay- 
able? 

Does  the  form  of  assignment  of  mortgage  transfer 
the  note  or  bond  and  the  mortgage  or  only  the  mort- 
gage? 

The  ordinary  form  of  part  release  of  mortgaged 
premises  in  the  market  was  evidently  prepared  prior  to 
1840,  when  a  mortgage  was  a  conditional  deed,  and  has 
never  been  revised.  You  can  use  it;  it  will  effect  a  re- 
lease of  the  desired  land.  It  will  indicate  a  better  un- 
derstanding of  your  calling  to  draft  an  instrument  re- 


112  DEAFTING  OF  CONVEYANCE. 

leasing  the  particular  land  from  the  lien  of  the  mort- 
gage unless  the  mortgage  is  drawn  upon  an  antique 
form  which  is  still  sold  by  the  stationer. 

The  stationer's  form  of  option  when  filled  in  and  exe- 
cuted will  give  you  a  right  to  purchase  a  piece  of  land, 
but  it  will  not  give  you  any  time  to  examine  the  title  or 
even  a  right  to  demand  an  abstract  of  title  for  that  pur- 
pose. Under  it  you  simply  pay  your  money  and  de- 
mand a  deed. 

You  must  read  the  form  and  determine  that  it  con- 
tains the  necessary  provisions  to  carry  out  your  design ; 
the  fact  that  it  is  in  common  use  does  not  make  it  in- 
fallible. 

Having  procured  a  proper  form  and  determined  that 
the  particular  form  will  carry  out  your  design,  the  most 
important  act  in  the  use  of  the  form  is  to  exercise  the 
highest  degree  of  care  in  writing  the  names  of  persons. 
There  are  no  rules  regulating  the  spelling  of  names  of 
persons.  When  your  instrument  reaches  the  recording 
office  to  be  copied  there  is  nothing  to  distinguish  "U" 
from  "N"  or  an  "F"  from  a  "T,"  an  "S"  from  an 
"R"  or  an  "0"  from  an  "A"  except  such  care  or 
carelessness  as  you  have  devoted  to  their  production 
The  context  will  enable  one  to  decipher  other  words, 
but  upon  the  conveyancer  alone  rests  the  responsibility 
of  certainty  of  names. 

In  drawing  warranty  deeds  to  be  executed  by  a  man 
and  wife  of  land  in  which  the  wife  only  has  a  dower  in- 
terest or  as  a  tenant  by  entirety,  there  is  nothing  gained 
by  the  wife  joining  in  the  covenants  for  title. 

She  cannot  be  bound  by  her  covenant  in  a  deed  unless 
it  conveys  her  sole  property. 


USE  OF  LONGHAND.  113 

The  practice  of  ruling  in  all  blank  spaces  in  a  deed 
with  colored  lines  should  be  followed,  but  do  it  person- 
ally. Use  your  head  as  well  as  your  hands.  When  you 
are  about  to  rule  out  a  space  read  enough  of  the  instru- 
ment upon  either  side  of  the  blank  to  determine  its  pur- 
pose and  you  will  often  fill  the  space  with  a  word  or 
phrase  rather  than  a  line. 

Euling  out  the  blanks  improves  the  appearance  of  the 
instrument  and  if  performed  thoughtfully  it  serves  as 
a  check  upon  the  accuracy  of  the  instrument  and  usually 
results  in  the  crossing  of  "t's"  and  dotting  of  "i's" 
which  would  otherwise  be  left  to  conjecture. 

When  you  underline  the  names  of  grantor  and  gran- 
tees, just  imagine  some  other  person  wrote  them  and 
see  if  you  can  determine  who  they  are. 

In  expressing  the  terms  of  your  contract,  endeavor 
to  do  so  in  simple,  short  words  free  from  ambiguity 
and  when  once  expressed,  stop ;  do  not  repeat  the  state- 
ment, in  other  language  or  attempt  to  state  what  you 
intend  by  the  expression  used.  Repetition  is  productive 
of  uncertainty.  If  you  have  so  expressed  yourself  that 
it  is  necessary  to  detail  your  intention,  rewrite  your  in- 
strument in  such  language  that  another  can  deduce  but 
one  meaning  from  it  and  that  the  desired  meaning.  This 
is  sometimes  difficult,  but  usually  possible. 

Your  client  can  better  afford  to  pay  for  a  little  addi- 
tional time  for  such  an  effort  than  to  pay  for  litigation 
over  the  meaning  of  an  ambiguous  instrument. 

Personally,  I  believe  in  the  filling  in  of  blank  forms  in 
long  hand.  The  typewriter  avoids  illegibility,  but  the 


114  EXAMINATION  OF  TITLES. 

ink  of  the  ribbon  has  but  little  durability.  In  writing 
descriptions  there  is  a  common  practice  of  writing  out 
the  lot  number  and  repeating  the  number  in  figures. 
viz:  ''Lot  seven  (7)."  I  can  see  no  benefit  from  the 
practice  except  an  enlarged  field  for  error.  The  writing 
would  prima  facie  overrule  the  figures. 

Use  care  in  describing  fractional  parts  of  irregular 
lots.  Halves  and  quarters  are  measures  of  area,  not 
frontage.  If  you  desire  to  convey  half  of  an  irregular 
shaped  lot  sometimes  it  can  be  accomplished  by  using 
the  expression  "half  the  width,"  but  it  may  be  neces- 
sary to  describe  its  boundaries  by  their  courses  and  dis- 
tances. 


EXAMINATION  OF  TITLES. 

Title  to  land  may  be  said  to  be  the  right  of  a  private 
individual  to  the  exclusive  possession  of  a  particular 
parcel  of  land  as  against  the  remainder  of  the  world. 

The  original  source  of  title  is  the  sovereign  power  as 
the  king  was  the  original  source  of  title  under  the  feudal 
system.  The  original  evidence  was  the  mailed  fist  and 
the  lance. 

The  early  adventurers  who  discovered  America  took 
possession  of  the  territory  in  the  names  of  their  re- 
spective sovereigns.  Through  wars  and  treaties  the 
American  colonies  and  ultimately  the  United  States  suc- 
ceeded to  the  title  to  the  country.  Grants  emanating 
from  the  sovereigns  in  power  from  time  to  time  were 
made  to  private  individuals. 

Michigan  lands  are  a  part  of  what  was  known  as  the 


INDEXING  PUBLIC  RECOKDS.  115 

Northwest  Territory.  Many  of  the  original  colonies 
claimed  that  their  charters  from  the  crown  gave  them 
title  to  land  far  to  the  westward  of  the  present  limits 
of  the  respective  states,  while  the  general  government 
that  existed  under  the  Articles  of  Confederation  claimed 
that  the  unsettled  domain  was  spoils  of  the  Revolution- 
ary war  for  common  division. 

Virginia,  Massachusetts  and  Connecticut  claimed  the 
Northwest  Territory.  Virginia  ceded  her  rights  to  the 
general  government  in  1784.  Massachusetts  followed 
in  1785  and  Connecticut  in  1786,  and  the  United  States 
is  regarded  as  the  original  source  of  title  to  lands  in 
the  states  which  were  formed  out  of  the  territory,  ex- 
cepting the  so-called  Private  Claims  to  which  the  United 
States  never  had  any  title  whatsoever. 

The  United  States  has  granted  parts  of  the  public 
domain  to  private  individuals  under  cash,  homestead 
and  military  bounty  entries  and  to  the  state  under  the 
various  university  and  school  lands  and  swamp  land 
grants,  and  as  subsidies  for  public  improvements  such 
as  canals,  highways  and  railroads.  Patents  have  been 
executed  by  the  Federal  Government  and  by  State  gov- 
ernments of  the  lands  granted  to  them. 

The  recording  laws  have  provided  a  place  of  public 
registration  of  conveyances,  patents,  grants  and  other 
evidence  of  title. 

The  system  of  indexing  public  records  in  common  use 
in  most  of  the  states  is  an  alphabetical  index  of  the 
names  of  the  grantors  and  grantees. 

This  has  been  found  uncertain  and  private  individuals 


116  EXAMINATION  OF  TITLES. 

have  undertaken  to  copy  the  public  records  and  index 
them  by  reference  to  the  land  described  in  the  instru- 
ment, and  prepare  and  furnish  brief  abstracts  of  such 
of  the  records  as  affect  the  title  to  a  specific  parcel  of 
land.  This  production  is  called  an  abstract  of  title  and 
varies  from  a  mere  index  of  the  records  to  a  more  or 
less  complete  copy  of  every  instrument  and  judicial  pro- 
ceeding affecting  the  particular  land. 

In  some  localities  the  party  making  abstracts  instead 
of  supplying  a  copy  of  the  record,  himself  employs  com- 
petent talent  and  examines  the  records  and  furnishes  a 
certificate  of  title.  The  purchaser  relies  upon  this  cer- 
tificate rather  than  abstract  and  an  attorney's  opinion. 
Certificates  are  common  in  Cleveland,  Chicago,  Los  An- 
geles and  in  the  larger  cities  in  the  west,  and  are  com- 
ing into  use  in  this  city. 

The  examination  of  land  titles  may  be  stated  to  be 
an  examination  of  the  public  records  for  evidences 
which  when  produced  in  a  court  of  justice  will  enable 
a  person  to  assert  or  defend  title  to  a  piece  of  real 
estate. 

As  has  been  stated,  the  public  records  are  presump- 
tive evidence  of  the  matters  stated  in  the  record. 

Before  taking  up  the  subject  of  the  record  evidence, 
your  attention  should  be  called  to  the  fact  that  title  to 
land  can  exist  without  any  record  evidence  whatever 
that  will  prevail  over  the  best  of  record  titles,  viz: 

1.  Possession   under    claim    of    title    for    the 
period  of  the  statute  of  limitations. 

2.  Possession  under  an  unrecorded  grant  from 
the  holder  of  the  record  title. 


OUTSTANDING   HOSTILE   INTEREST.  117 

It  follows  that  in  the  examination  of  title  to  land,  as 
diligent  an  inquiry  should  be  made  into  possessory 
rights  as  in  the  record  title. 

In  the  examination  of  an  abstract  of  title  your  object 
is  to  determine  in  whom  does  the  abstract  show  pre- 
sumptive evidence  of  title  and  is  the  title  shown  by  such 
evidence  a  marketable  title? 

Unless  the  contract  contains  a  provision  to  the  con- 
trary a  marketable  title  is  all  that  the  purchaser  is  en- 
titled to  receive. 

The  term  marketable  title  does  not  mean  a  perfect 
title,  but  simply  a  title  which  is  not  subject  to  any  fair 
or  reasonable  doubt. 

Such  a  thing  as  absolute  security  in  the  purchase  of 
real  estate  is  unknown. 

The  record  evidence  is  only  presumptive,  not  conclu- 
sive, evidence  of  ownership. 

There  is  no  such  a  thing  as  mathematical  certainty; 
the  laws  of  average  and  common  sense  are  the  govern- 
ing rules. 

Assume  that  you  have  reached  the  conclusion  that  the 
submitted  title  is  bad ;  apply  the  practical  test. 

Imagine  yourself  consulted  by  the  person  who  holds 
the  outstanding  hostile  interest.  That  he  desires  to  en- 
list your  services  to  recover  the  land.  He  submits  the 
title,  showing  it  vested  in  an  ancestor  or  a  kinsman.  He 
shows  that  apparently,  so  far  as  the  records  go,  this 
title  has  never  been  parted  with. 


118  EXAMINATION  OF  TITLES. 

He  shows  his  relationship  and  that  he  is  sole  heir-at- 
law  of  the  party  holding  the  apparent  title. 

You  advise  him  that  his  ancestor  had  title  and  still 
has  the  record  title,  you  approve  the  evidence  that  he 
is  sole  heir-at-law.  But  when  he  wishes  you  to  com- 
mence proceedings  to  recover  the  land,  what  is  your  re- 
ply? Invariably  it  is  that  you  and  those  through  whom 
you  claim  will  have  no  standing  before  the  court.  You 
have  neglected  to  claim  your  rights  for  so  long  a  period 
of  time  and  allowed  others  to  remain  in  possession  and 
make  improvements  for  such  a  period  of  time  that  your 
claim  is  stale  and  your  rights  are  barred  by  the  statute 
of  limitations. 

Is  it  consistent  to  advise  a  purchaser  that  there  is  a 
reasonable  doubt  about  a  land  title  when  you  would  ad- 
vise the  party  entitled  to  bring  the  action  to  recover  the 
land  that  there  is  no  reasonable  doubt  but  what  his  ac- 
tion will  be  unsuccessful? 

An  examiner  of  title  is  liable  to  an  action  of  slander 
of  title  in  the  same  manner  as  any  other  individual.  It 
would  doubtless  be  a  difficult  matter  for  the  plaintiff  to 
show  the  element  of  malice,  but  his  showing  of  a  pos- 
sessory title  is  a  sufficient  showing  for  the  foundation 
of  the  action  so  far  as  the  element  of  falsity  is  con- 
cerned. 

Hines  vs.  Lumpkin,  19  Texas  App.,  556. 

However,  our  court  has  rendered  a  decision  to  the 
effect  that  a  purchaser  is  justified  in  refusing  a  title 
when  doubtful  questions  of  law  are  involved  and  the 
purchaser  is  advised  by  a  reputable  attorney  acting  in 


ABSTRACTS.  119 

good  faith  that  the  title  is  of  doubtful  validity. 
Walker  vs.  Gillman,  127  Mich.,  269. 

In  every  title  there  are  some  defects  and  some  irregu- 
larities. It  will  not  be  for  you  to  determine  their  legal 
effect.  It  is  not  a  question  of  whether  a  particular  deed 
has  been  prepared  and  executed  as  you  think  it  should 
be  executed  or  whether  a  particular  legal  proceeding  has 
been  conducted  as  you  believe  it  should  have  been  con- 
ducted, but  the  question  is:  Is  the  deed  or  proceeding 
sufficient  for  its  purpose  as  a  matter  of  law? 

Suppose  that  you  find  that  some  transaction  standing 
by  itself  which  is  absolutely  void,  a  condition  may  exist 
which  renders  the  title  of  the  grantee  in  the  last  record- 
ed deed  a  marketable  title. 

For  example,  suppose  Jones  owned  a  parcel  of  land 
and  mortgaged  the  same  to  a  bank,  that  the  bank  fore- 
closed the  mortgage  and  a  trust  company  purchased  the 
title  upon  the  foreclosure  sale  and  the  foreclosure  pro- 
ceedings were  fatally  defective,  and  later  the  trust  com- 
pany conveyed  it  to  Jones,  the  original  holder  and  mort- 
gagor, and  no  rights  of  others  intervene,  the  defective 
foreclosure  could  not  affect  the  title. 

The  easiest  known  occupation  is  that  of  finding  fault 
and  criticising  the  acts  of  others,  but  remember  when 
your  client  submits  to  you  an  abstract  for  examination 
he  usually  desires  to  purchase  the  land  described.  Your 
duty  is  to  approve  the  title  unless  there  is  a  reasonable 
doubt  as  to  its  validity  and  his  security. 

The  money  he  pays  you  for  examining  his  title  is  like 
that  paid  for  fire  insurance.  Property  does  not  have  to 


120  EXAMINATION  OF  TITLES. 

be  fire  proof  to  be  an  insurable  risk.  Nor  does  a  land 
title  have  to  be  perfect  to  permit  the  land  to  be  pur- 
chased with  safety  and  enjoyed  with  security. 

If  the  abstract  shows  a  glaring  defect  of  recent  date 
and  which  affects  an  entire  subdivision,  the  probabilities 
are  that  you  are  not  the  first  one  to  make  the  discovery. 
Don't  content  yourself  with  the  abstract,  but  go  to  the 
original  evidence,  be  it  legal  proceedings  or  record,  and 
verify  the  abstractor's  copy  and  your  defect  may  fade 
away. 

Never  declare  a  title  bad  until  you  have  made  an  ex- 
haustive effort  to  approve  it. 

Examine  the  original  record  of  the  defective  convey- 
ance or  proceeding. 

Endeavor  to  secure  and  examine  the  original  instru- 
ment. 

Assure  yourself  that  the  law,  common  or  statutory,  in 
force  at  the  date  of  the  transaction  was  the  same  as  at 
the  existing  law  as  you  understand  it. 

Always  assume  that  the  title  ought  to  be  good  and  if 
there  is  evidence  that  the  debatable  instrument  or  pro- 
ceeding was  the  work  of  a  lawyer,  who  was  at  that  time 
of  reputed  ability,  do  not  act  too  hastily  in  concluding 
that  he  was  in  error. 


TITLE  BY  POSSESSION.  121 


TITLE  BY  POSSESSION. 

A  title  founded  upon  possession  alone  is  a  legally 
marketable  title  under  the  laws  of  Michigan. 

Barnard  vs.  Brown,  112  Midi.,  452. 

As  a  matter  of  practice  possessory  titles  are  not  gen- 
erally acceptable  upon  Griswold  Street,  though  a  court 
may  compel  the  purchaser  to  accept  them.  In  order  to 
rely  upon  possession  to  make  title  it  is  necessary  to  go 
outside  of  the  abstract  and  inform  yourself  that  the 
statute  has  run. 

The  statute  of  limitations  which  is  the  foundation  of   £> 
a  possessory  title  is  found  in  §9714   to    §9727,    Comp. 
Laws,  and  provides  the  following  periods,  viz :  '  * 

1.  When  the  defendant  claims  title  through  a 
deed  made  upon  a  sale  by  an  executor,  adminis- 
trator, guardian,  sheriff  or  other  ministerial  offi- 
cer under  an  order,  judgment,  decree  or  process 
of  a  court  of  this  State  or  by  a  sheriff  upon  a 
mortgage  foreclosure  sale,  any  action  is  barred 
after  five  years. 

2.  Where  defendant    claims    title    through    a 
deed  made  by  some  officer  of  this  State  or  the 
United  States  upon  a  tax  sale,  action  is  barred 
after  ten  years. 

3.  In  all  other  cases  action  is  barred  in  fif- 
teen years. 

§9715  provides  if  the  action  accrued  to  the  predeces-^.  f- 
sor    in    title,     the    person  who    brings  the  action,  the      /  * 


122  TITLE  BY  POSSESSION. 

period  of  the  limitation  shall  be  computed  from  the  time 
the  action  first  accruing  to  the  predecessor. 

§9716  fixes  the  time  when  actions  first  accru. 

1.  When  a  person  is  dispossessed  the  action 
accrues  at  that  time. 

2.  When  the  party  claims  as  heir  or  devisee 
the  action  accrues  from  the  death  of  the  ancestor 
unless  a  life  estate  intervenes,  then  it  accrues  up- 
on termination  of  the  life  estate. 

3.  Where  there  is  an  intermediate  estate  or 
the  party  claims  as  remainderman  or  reversioner, 
then  the  action  accrues  from  the  time  such  inter- 
mediate estate  terminates. 

4.  When  the  party  claims  for  breach  of  con- 
dition or  forfeiture  the  right  accrues  at  the  time 
of  the  breach  or  forfeiture. 

5.  In  all  other  cases  the  right  of  action  ac- 
crues at  the  time  the  claimant  became  entitled  to 
possession. 

§9718  to  §9720  provide  for  certain  abatements : 

if' 

-  If  at  the  time  when  any  right  of  action  shall 

first  accrue  the  person  entitled  to  bring  the  ac- 
tion shall  be 

1.  A   minor, 

2.  A  married  woman, 

3.  Insane, 

4.  Imprisoned, 

5.  Absent  from  the  United  States  unless  with- 
in one  of  the  British  provinces  of  North  America, 
Such  person  or  any  one  claiming  under  him  may 
bring  such  action  at  any  time  within  five  years 
after  such  disability  shall  have  been  removed. 


TITLE  BY  RECOKD.  123 

$9719  provides  that  if  the  person  first  entitled  to  bring 
the  action  shall  die  during  the  disability  without  any  ^    *> 
determination  or  judgment  having  been  rendered,  his      '  *  /  f 
heirs  or  those  claiming  under  him  may  bring  an  action 
within  five  years  after  his  death. 

§9720  provides  that  no  abatement  shall  be  had  for  c. 
the  disability  of  any  successor  in  interest. 

You  will  observe  that  the  abatement  of  the  running 
of  the  statute  only  occurs  when  the  person  first  entitled 
to  bring  the  action  is  under  one  of  the  disabilities  men- 
tioned when  the  action  first  accrued. 

You  will  observe  that  it  is  the  person  to  whom  the 
right  of  action  first  accrues  and  not  his  successor  in 
title  who  is  entitled  to  the  abatement  for  disability. 


TITLE  BY  EECOED. 

Abstracts  of  title  made  in  Wayne  Couny  are  usually 
prepared  to  cover  an  entire  subdivision  and  the  earlier 
part  is  often  printed.  Title  to  parts  of  the  subdivision 
may  be  derived  through  different  sources.  For  exam- 
ple, a  private  claim  may  have  been  patented  to  one  per- 
son and  at  his  death  or  later  divided  into  five  lots  num- 
bered 1  to  5,  and  conveyed  to  different  persons  and  the 
title  again  vested  in  one  person  and  divided  into  a  num- 
ber of  30  foot  lots.  If  you  are  examining  the  title  to 
lot  200,  for  example,  the  first  question  to  be  determined 
is,  is  lot  200  a  part  of  one  or  more  of  the  original  lots? 
If  it  is  a  part  of  original  lot  five  you  have  no  concern 
with  the  title  to  original  lots  one,  two,  three  or  four. 
No  matter  what  defects  there  may  be  in  the  title  to 


124  TITLE  THROUGH  CONVEYANCE. 

those  lots,  lot  200  of  the  new  subdivision  cannot  be 
affected.  Or  suppose  a  subdivision  is  made  of  a  part 
of  private  claims  26  and  641;  if  your  lot  is  in  private 
claim  26  you  have  no  concern  with  the  title  of  private 
claim  641. 


TITLE  THROUGH  CONVEYANCES. 

Having  determined  what  part  of  the  land  your  title 
comes  through,  assuming  the  title  comes  from  the  orig- 
inal patentee,  your  inquiries  are: 

1.  Does  the  similarity  of  names  of  the  grantee 
in  the  one  deed  with  the  name  of  the  grantor  in 
the  next  raise  the  legal  presumption  of  the  iden- 
tity? 

2.  If  the  grantor  is  a  male,  does  a  wife  join  in 
the  execution  or  the  deed  recite  that  he  is  single? 

The  deed  of  a  married  man  in  which  his  wife 
does  not  join  leaves  her  dower  outstanding  and 
if  the  land  is  a  homestead  the  deed  is  void. 

3.  If  the  grantor  is  a  female  and  the  deed  was 
made  prior  to  the  abolition  of  the  estate  by  the 
courtesy,  does  the  husband  join  or  is  there  any 
evidence  that  the  grantor  was  unmarried? 

4.  If  the  possibility  of  dower  or  courtesy  is 
not  thus  eliminated,  is  there  any  other  evidence 
of  its  non-existence? 

The  age  of  the  instrument,  in  view  of  the  expectancy 
of  life,  is  to  be  always  taken  in  account.  If  the  deed 
was  made  prior  to  1850  it  can  be  assumed  as  axiomatic 
that  dower  or  courtesy  cannot  exist. 


STEANGER  TO  THE  TITLE.  125 

The  legal  principles  that  the  action  of  dower  does  not 
accrue  until  the  death  of  the  husband  and  does  not  sur- 
vive the  death  of  the  wife,  must  be  kept  in  mind. 

5.  Does  the  instrument  contain  the  operative 
words  essential  to  a  grant? 

6.  If  the  grant  was  made  prior  to  1881,  does 
the  instrument  contain  words  of  limitation? 

7.  Is  the  grantee  described  apparently  a  per- 
son capable  of  taking  title? 

8.  Does  the  deed  describe  the  land  with  suffi- 
cient certainty  to  enable  one  to  identify  it? 

9.  Are  there  any  recitals  in  the  deed  giving 
notice  of  the  rights  of  others? 

10.  If  the  grant  is  a  quitclaim  was  it  deliv- 
ered subsequent' to  the  date  of  the  acquisition  of 
title  by  the   grantor? 

11.  Is  the  instrument  executed  and  acknowl- 
edged in  the  manner  required  by  the  law  in  force 
at  the  time  of  its  execution  or  by  some  subsequent 
curative  statute,  so  as  to  entitle  it  to  be  recorded? 

So  much  for  the  record,  but  who  knows  whether  the 
original  instrument  is  genuine  or  forged  or  whether  the 
grantor  was  insane  and  incompetent  or  whether  the  re- 
citals as  to  marriage  are  true  or  false  or  the  party  sign- 
ing as  a  wife  was  the  legal  wife,  or  whether  the  grantee 
named  in  the  one  deed  is  the  same  person  as  the  grantor 
of  identical  name  in  the  deed  following?  These  ques- 
tions must  often  be  left  to  common  honesty. 

A  deed  from  a  stranger  to  the  title  raises  no  presump- 
tion of  title  unless  the  grantor  was  in  possession. 

Crawford  vs.  Corey,  99  Mich.,  415. 

A  deed  from  a  stranger  to  the  title  is  not  a  cloud 
which  equity  will  remove. 


126  TITLE  BY  CONVEYANCE. 


In  the  examination  of  the  records  of  a  land  title  you 
are  confined  to  the  record  of  the  title  to  the  land  in 
question  and  are  not  concerned  with  the  title  to  other 
lands. 

If  you  are  examining  the  title  to  lot  7  of  a  particular 
subdivision  and  the  title  to  lot  9  comes  through  other 
conveyances  and  in  those  instruments  there  is  notice  of 
an  incumbrance  upon  lot  7,  such  record  is  not  notice  to 
the  purchaser  of  lot  7.  To  use  the  technical  expression, 
"It  is  not  in  the  chain  of  title." 

Albany  Savings  Bank  vs.  Brass,  59  App.  Div., 

37  N.  Y.    (This  case  was  affirmed  by  the  Court 

of  Appeals  without  an  opinion,  88  N.  E.,  1105.) 

Meachem  vs.  Blaess,  141  Mich.,  260. 

Even  though  you  examine  the  title  to  lot  9  and  know 
the  contents  of  the  conveyances,  your  knowledge  will  not 
bind  your  client.  You  are  only  an  agent  and  such  an 
act  would  be  outside  the  scope  of  your  authority. 

Albany  Sav.  Bank  vs.  Brass,  supra. 

It  is  somewhat  difficult  to  harmonize  this  rule  with 
the  rules  followed  in  building  restriction  cases,  but  I 
believe  the  notice  in  such  cases  is  the  actual  notice  im- 
parted by  the  buildings  in  the  neighborhood  rather  than 
constructive  notice  of  the  record,  where  there  is  noth- 
ing in  the  chain  of  title  showing  a  restriction. 

If  the  deed  purports  to  come  from  a  surviving  tenant 
by  the  entirety,  there  must  be  presumptive  evidence  of 
death  of  the  other  tenant,  and  if  the  death  of  one  of  the 


POWEES  OF  ATTORNEY.  127 

tenants  occurred  since  Sepember  1,  1909,  there  must  be 
evidence  that  the  marriage  relation  existed  at  death. 

Act  259,  Pub.  Acts  Mich.,  1909. 

Since  the  passage  of  that  act  divorce  converts  a  ten- 
ancy by  entirety  into  a  tenancy  in  common  unless  the 
decree  otherwise  provides. 

Conveyances  under  powers  of  attorney  are  prepared 
in  the  same  manner  as  for  execution  by  an  owner. 

The  name  of  the  owner  is  signed  by  the  attorney.  The 
attorney  then  adds  the  word  "by,"  signs  his  name,  and 
adds  beneath  the  words,  "his  attorney  in  fact." 

The  acknowledgment  of  the  attorney  may  follow  the 
statutory  uniform  form,  §9020  Comp.  Laws,  or  simply 
recite  the  appearance  of  John  Smith,  attorney  in  factc-*  ***** 
for  James  Brown,  and  that  he  acknowledged  the  in-     "  >  ft 
strument  as  his  free  act  and  deed  as  such  attorney  in 
fact  for  and  in  behalf  of  said  Brown. 

In  examining  powers  of  attorney  in  connection  with 
land  titles  you  must  observe: 

1.  That  the  date  of  execution  antedates  the 
instrument   in   question. 

2.  That  the  language  confers  power  to  per- 
form the  particular  act. 

The  rules  of  law  governing  agency  are  to  be 
applied. 

3.  That  they  are  executed  in  a  manner  en- 
titling them  to  be  recorded. 

4.  If  any  great  interval  of  time  has  elapsed 
between  the  date  of  execution  of  the  power  and 
date  of  the  deed  under  it,  inquiry  must  be  made 


128  TITLE  THROUGH  FORECLOSURE. 

whether  any  revocation  has  been  made  and  re- 
corded and  whether  the  donor  was  still  living. 
Death  revokes  the  power  unless  coupled  with  an 
interest. 

The  statute  provides  how  a  married  woman  may  re- 
lease her  dower,  viz: 

(a)  By  joining  with  her  husband  in  a  convey- 
ance of  the  land. 

(b)  By  joining  with  her  husband  in  a  subse- 
quent deed  or  by  a  deed  executed  by  the  wife 
alone  to  one  who  has  theretofore  acquired  and 
then  holds  the  husband's  title,  provided  the  in- 
tent to  bar  her  right  of  dower  shall  be  expressed 
in  said  deed. 

§8930  Comp.  Laws,  1897. 

TITLE  THROUGH  FORECLOSURE  OF  MORT- 
GAGES. 

The  object  of  a  foreclosure  of  a  mortgage  is  to  ex- 
tinguish the  equity  of  redemption  in  the  mortgagee  or 
his  successors  in  title.  There  are  two  methods,  by  a 
proceeding  in  a  court  of  equity  and  foreclosure  by  ad- 
vertisement or  more  correctly  termed  a  statutory  fore- 
closure by  exercise  of  the  power  of  sale. 

THE  STATUTORY  FORECLOSURE. 

To  make  a  valid  statutory  foreclosure: 

(a)  The   mortgage  must  contain   a   power   of 
sale. 


STATUTORY  FORECLOSURE.  129 

(b)  There  must  have  been  a  default  in  some 
condition  of  the  mortgage  making  the  power  of 
sale   operative. 

(c)  No  suit  shall  have  been  brought  to  recover 
the  debt  secured,  or  such  suit  must  have  been  dis- 
continued or  an  execution  on  a  judgment  returned 
unsatisfied  in  whole  or  in  part. 

(d)  The  mortgage  and  all  assignments  must 
have  been  recorded. 

Assuming  this  condition  to  exist,  the  tests  to  be  ap- 
plied are: 

1.  Was  notice  that  the  mortgage    would    be 
foreclosed  by   sale   of  the   mortgaged  premises 
published  for  twelve  successive  weeks,  once  in 
each  week  in  a  newspaper  printed  in  the  county 
where  the  land  or  some  part  is  situated? 

2.  Does  the  notice  specify  the  names  of  the 
mortgagor,  mortgagee,  and  assignee,  if  any? 

3.  Does  the  notice  specify  the    date    of    the 
mortgage  and  when  recorded? 

4.  Does  the  notice  specify  the  amount  claimed 
due  at  its  date? 

5.  Does  the  notice  specify  a  description  of  the 
mortgaged  premises  substantially  the  same  as  in 
the   mortgage  ? 

6.  Was  the  sale  made  at  the  place  of  holding 
the  Circuit  Court,  in  a  county  where  the  mort- 
gaged land  or  some  part  of  it  is  situated? 

7.  Was  the  sale  made  at  the  time  fixed  in  the 
notice  by  the  person  appointed  in  the  mortgage, 
or  the  sheriff,  under  sheriff,  or  a  deputy  sheriff, 
and  sold  to  the  highest  bidder? 

8.  If  the  sale  was  adjourned  from  the  time 


130  FOBECLOSUEE   IN    EQUITY. 

fixed  in  the  notice,  was  notice  of  adjournment 
given  by  publishing  in  the  same  paper  as  the 
original  notice  once  each  week? 

9.  If  the  mortgaged  premises  consist  of  sev- 
eral distinct  tracts  or  lots  not  occupied  as  one 
parcel  were  the  lots  sold  in  parcels? 

(The  statutory  requirement  that  the  premises 
be  sold  in  parcels  has  been  repeatedly  held  man- 
datory.) 

10.  If  the  land  has  been  sold  in  parcels  to  oth- 
ers since  the  mortgage  was  given,  was  the  land 
sold  in  the  inverse  order  of  alienation? 

11.  Has   the   time   for   redemption   from   the 
sale  expired  without  redemption  being  made? 

12.  Was  the  purchaser  disqualified  from  pur- 
chasing? 

This  proceeding  is  purely  statutory,  and  unless  the 
proceeding  will  bear  inquiries  suggested  it  will  not  pass 
title  without  the  aid  of  the  statute  of  limitations. 


THE  FORECLOSURE  IN  EQUITY. 

This  proceeding  varies  little  from  any  ordinary  chan- 
cery suit.  Most  irregularities  not  affecting  jurisdiction 
are  cured  by  the  decree.  The  parties  have  had  their 
day  in  court. 

The  tests  to  be  applied  to  this  proceeding  are : 

1.  Was    the    suit    commenced    in    the    county 
where  the  land  or  a  part  of  it  is  situated? 

2.  Have  the  mortgagors  and  all  persons  who 
have  acquired  any  interest  in  the  premises  subse- 
quent to  the  mortgage,  whether  an  estate  in  or 
lien  upon  the  same,  been  made  parties  to  the  suit  ? 


CONTENTS  OF  NOTICE.  131 

3.  Have  the  wives  of  such  male  defendants  as 
had  a  legal  estate  of  inheritance  in  the  land  been 
made  parties  to  the  suit? 

4.  Have  the  defendants  been  served  with  pro- 
cess in  a  legal  manner? 

5.  If  brought  in  by  publication,  was  the  order 
of  publication  founded  upon  a  sufficient  affidavit 
of  non-residence?    Was  the  order  made  without 
fatal  delay  after  the  date  of  the  affidavit,  and  was 
the  order  served  or  published  in  the  manner  re- 
quired by  statute? 

6.  If  parties  have  acquired  estates  in  or  liens 
upon  the  lands  subsequent  to  filing  the  bill  and 
before  recording  the  commissioner's  deed,  was 
a  proper  notice  lis  Pendens  duly  recorded? 

7.  Does  the  bill  correctly  describe  the  prem- 
ises? 

8.  Was  the  decree  properly  entered  and  en- 
rolled before  sale? 

9.  Was  notice  of  sale  published  once  in  each 
week  for  six  successive  weeks  before  the  time 
fixed  for  sale? 

10.  Was  a  copy  of  the  notice  posted  in  three 
public  places    in    the    city,    village  or  township 
where  the  land  is  located  for  six  weeks  previous 
to  the   sale? 

11.  If  the  sale  were  adjourned  for  more  than 
one  week  was  notice  of  adjournment  printed  and 
posted? 

12.  Does  the  notice  contain: 

(a)  The  title  of  the  cause? 

(b)  The  names  of  the  parties? 

(c)  The  date  of  the  decree  pursuant  to 
which  the  sale  was  made? 


132  TITLE  THEOUGH  INHERITANCE. 

13.  Were  the  lands  sold  in  the  manner  direct- 
ed by  the  decree? 

14.  Was  the  sale  reported  and  confirmed? 

15.  Was  the  sale  made  within  ten  years  after 
entry  of  the  decree? 

16.  Was  the  purchaser  disqualified  from  pur- 
chasing? 

17.  Has  the  time  for  redemption  expired  with- 
out the  right  being  exercised? 

What  has  been  said  of  titles  through  foreclosure  of 
mortgages  will  apply  to  title  through  foreclosure  or  the 
specific  enforcement  of  land  contracts,  except  that  there 
is  no  right  of  redemption  from  such  a  sale. 

There  is  another  feature  in  such  sales  that  should 
be  called  to  your  attention.  If  the  vendor  forecloses 
and  a  third  person  purchases  at  the  sale,  unless  the 
wife  of  the  vendor  was  a  party  to  the  suit  her  dower  in 
the  land  will  not  be  acquired  through  the  master's  deed. 

TITLE  THROUGH  INHERITANCE. 

The  persons  entitled  to  succeed  to  the  title  to  land  by 
descent  are  determined  by  the  law  in  force  at  the  death 
of  the  ancestor. 

The  first  law  of  descent  in  Michigan  was  embodied  in 
the  Ordinance  of  1787,  which  was  in  force  from  July  13, 
1787,  to  January  31,  1809,  though  not  in  full  force  in 
Michigan  until  July,  1796,  when  the  British  government 
evacuated  Detroit. 

July  1,  1796,  has  been  fixed  as  the  official  date  of  the 
transfer  of  possession  by  the  British  to  the  Americans, 


DECENT.  133 

though  I  believe  July  11,  1796,  was  the  date  the  British 
flag  was  actually  lowered. 

See  Abbott  vs.  Godfrey's  Heirs,  1  Mich.,  182. 
Farmer's  History  of  Detroit,  267  et  seq. 

The  succeeding  laws  will  be  found: 

Vol.  2,  Territorial  Laws,  page  20.  A  re-enact- 
ment of  the  Ordinance.  In  force  Jan.  31,  1808, 
to  Jan.  19,  1811. 

Vol.  1,  Territorial  Laws,  page  160.  In  force 
Jan.  19,  1811,  to  Oct.  1,  1818. 

Vol.  1,  Territorial  Laws,  page  356.  In  force 
Oct.  1,  1818,  to  April  12,  1827. 

Vol.  2,  Territorial  Laws,  page  533.  In  force 
April  12,  1827,  to  Aug.  31,  1838. 

Revised  Statutes,  1838.  In  force  Aug.  31,  1838, 
to  March  1,  1847. 

Revised  Statutes,  1846,  page  267.  In  force 
March  1,  1847,  to  Sept.  10,  1881. 

Public  Acts,  1881,  page  29.  In  force  Sept.  10, 
1881,to  Sept.  8,  1883. 

Public  Acts,  1883,  page  180.  In  force  Sept.  8, 
1883,  to  Oct.  2,  1889. 

Public  Acts,  1889,  page  193.  In  force  Oct.  2, 
1889,  to  Aug.  28,  1893. 

Public  Acts,  1893,  page  322.  In  force  Aug.  28, 
1893,  to  Sept.  1,  1909. 

Public  Acts,  1909,  page  663.  In  force  since 
Sept.  1,  1909. 

The  statutory  law  is  the  only  law  governing  descent. 
The  common  law  rules  have  never  obtained  in  Mich- 
igan. 

Keeler  vs.  Dawson,  73  Mich.,  603. 


134  TITLE  THROUGH  INHERITANCE. 

The  law  of  descent  applies  only  to  intestate  lands. 

Illegitimates  inherit  from  the  mother  and  the  mother 
and  her  kin  are  the  heirs  of  an  illegitimate  dying  with- 
out issue. 

§9065-9066  Comp.  Laws,  1897. 


The  degrees  of  kindred  are  computed  according  to 
the  rules  of  the  civil  law. 

§9068  Comp.  Laws,  1897. 


Half  bloods  inherit  equally  with  those  of  the  whole 
blood. 

Where  there  are  several  collateral  kin  of  the  same 
degree,  if  the  property  was  acquired  by  descent,  devise 
or  gift  from  an  ancestor,  those  not  of  the  blood  of  the 
ancestor  are  excluded. 

§9065  Comp.  Laws,  1897. 


The  doctrine  that  an  adopted  child  is  the  heir  of  the 
foster  parent  or  parents  and  can  inherit  from  them  but 
not  through  them,  that  is,  it  can  not  claim  the  share  of 
a  deceased  foster  parent  in  land  to  which  the  parent 
would  have  succeeded  if  living,  is  laid  down  in 

Van  Derlyn  vs.  Mack,  137  Mich.,  146. 

It  was  held  that  an  adopted  child  would  satisfy  the 
classification  of  an  heir  in  a  remainder,  in 

Ultz  vs.  Upham,  177  Mich.,  351. 


DESCENT.  135 

Without  reference  to  Van  Derlyn  vs.  Mack,  the  court 
seems  to  have  overruled  the  doctrine  therein  laid  down, 
in 

Fisher  vs.  Gardner,  21  D.  L.  N.,  1236. 

The  land  of  an  adopted  child  dying  without  issue 
which  comes  from  or  through  the  foster  parents,  will 
descend  to  their  kin  and  not  to  its  natural  heirs. 

§9077  Comp.  Laws,  1897. 

~ 


Adoption  is  statutory  and  was  unknown  to  the  com- 
mon law. 

Albring  vs.  Ward,  137  Mich.,  342,  354. 
Morrission  vs.  Session  Estate,  70  Mich.,  297. 

The  first  adoption  act  in  Michigan  was  Act  26,  1861, 
which  was  repealed  in  1887.  The  original  act  was  held 
unconstitutional. 

People  vs.  Congdon,  77  Mich.,  351. 

The  result  is  that  adoptions  made  prior  to  the  Acts 
of  1887,  Nos.  171,  144  and  170,  are  void  and  inheritance 
can  not  be  claimed  by  the  foster  child. 

A  husband  and  wife  living  in  a  bigamous  relation  at 
the  time  of  the  death  of  the  lawful  spouse,  cannot  in- 
herit from  him  or  her  or  claim  dower. 

Act  327,  P.  A.  M.,  1905. 

Where  a  man  dies  without  issue  occupying  a  home- 
stead, our  courts  have  held  that  the  widow  is  entitled 
to  the  homestead  right  as  against  brothers  and  sisters 
under  the  constitution. 

Koster  vs.  Gellen,  124  Mich.,  150. 


136  INTESTATE  ESTATES. 

Title  to  land  of  a  deceased  person  vests  in  the  heirs 
or  devisees  at  death,  subject  to  the  claims  of  creditors. 

At  common  law  lands  were  not  assets  in  the  hands  of 
the  administrator. 

Shelden  vs.  Rice,  30  Mich.,  302. 

In  the  examination  of  land  titles,  where  title  is  de- 
rived by  inheritance,  we  look  to  the  record  and  proceed- 
ings in  the  Probate  Court  for  evidence  as  to  who  were 
a  deceased  person's  heirs  and  whether  the  claims  of 
creditors  have  been  extinguished. 

Formerly  the  statute  of  limitations  against  the  claims 
against  a  deceased  person  abates  from  the  date  of  death 
until  administration  is  granted. 

§9737  Comp.  Laws. 
C  *    >W,    I1T 

Since  August  23,  1915,  claims  against  a  deceased  per- 
son are  barred  ten  years  after  his  death  whether  the 
estate  is  administered  or  not  and  those  against  persons 
deceased  more  than  ten  years  prior  to  August  23,  1915, 
may  be  enforced  on  or  before  February  23,  1916. 

Act  256,  Pub.  Act,  1915. 

If  the  estate  be  intestate  the  inquiries  are : 

1.  Was  the  petition  for  the  appointment  of  an 
administrator  filed  by   a   person   authorized   by 
statute  to  set  the  administration  in  motion? 

2.  Was  notice  of  the  hearing  given  as  required 
by  statute? 

3.  Have  Commissioners  on  Claims  been    ap- 
pointed, met  and  reported  their  doings   to   the 
court  after  notice  as  required  by  statute? 


RELATIONSHIP  OF  PERSONS.  137 

4.  If  any  claims,  have  they  and  the  expenses 
of  administering  the  estate  been  paid? 

5.  Has  a  determination  of  heirs  been  made? 
This  is,  under  the  statute,  only  prima  facie  evi- 
dence of  the  facts  determined. 

6.  Has  an  order  been  entered  assigning  the 
residue  to  the  persons  entitled  and  the  adminis- 
trator discharged? 

7.  If  the  land  was  subject  to  an  inheritance 
tax,  has  the  tax  been  determined  and  paid? 

Whether  the  order  assigning  the  residue  is  a  judg- 
ment in  rem,  conclusive  upon  all  the  world,  if  made 
after  proper  notice  even  though  erroneous,  has  never 
been  expressly  decided  in  Michigan. 

My  personal  opinion  is  that  it  is  only  presumptive  or 
prima  facie  evidence  of  pedigree  and  is  not  conclusive 
upon  a  person  not  named  and  who  had  no  actual  notice. 
If  this  position  is  incorrect  an  erroneous  order  is  bind- 
ing. 

In  the  older  estates  the  only  evidence  of  pedigree  is 
often  the  recitals  in  the  petition  for  administration. 
Such  recitals  as  ancient  documents  are  undoubtedly  pre- 
sumptive evidence. 

Affidavits  as  to  birth,  marriage,  death,  name,  resi- 
dence, identity  and  relationship  of  persons  named  in 
conveyances  may  now  be  recorded  and  received  as 
prima  facie  evidence  in  courts  of  justice  under  a  recent 
statute. 

Act  123,  Pub.  Acts  Mich.,  1915. 


138  TESTATE  ESTATES. 

//  the  estate  is  testate  the  principal  inquiries  are: 

1.  Has  the  will  been  admitted  to  probate  after 
statutory  notice? 

No  petition  is  necessary  to  set  the   court  in 
motion.     If  the  will  is  deposited  in  the  probate 
office  it  is  the  duty  of  the  judge  to  give  notice  of 
a  time  and  place  of  proving  it. 
.  £  §9278  Comp.  Laws,  1897. 

\r 

2.  The  rights  of  creditors  are  the  same  as  in 
-»              an  intestate  estate. 

T  & 

3.  Did  the  testator    leave    any    children  who 
were  born  after  the  date  of  the  execution  of  the 
will? 

4.  If  so,  does  the  will  make  any  provision  for 
them  or  expressly  exclude  them? 

Children  born  after  making  of  a  will  take  the 
same  share  as  if  the  parent  died  intestate,  unless 
>^     provision  is  made  for  them  or  they  are  excluded. 
\*K  §9285  Comp.  Laws,  1897. 

5.  If  title  comes  through  a  devise,  was  the 
devisee  a  witness  to  the  will?    If  so,  were  there 
two  additional  competent  witnesses? 

A  devisee  to  the  subscribing  witness  is  void  un- 
less there  are  two  other  competent  witnesses. 
l\4  §9268  Comp.  Laws,  1897. 

6.  The  language  of  the  devise  must  be  exam- 
ined to  determine  what  estate  is  granted. 

7.  If  a  trust  is  created  or  conditions  imposed, 
do  they  violate  the  rules  against  suspension  of 
alienation? 

Trusts  are  usually  coupled  with  a  power 
of  sale  and  if  the  trust  is  void  the  power  is  void, 
and  the  purchaser  derives  no  title.  The  land 
vests  in  the  residuary  devisee  or  in  the  heirs  at 
law  as  intestate  property. 


* 

*JUK 


TBUSTEE  TAKES  THE  TITLE.  139 

Since  the  passage  of  Act  253  of  1899  a  trustee 
must  qualify  before  he  can  exercise  the  powers 
given  him. 

Gibary  vs.  Allen,  156  Mich.,  301. 

As  I  have  stated,  Uses  and  Trusts  and  Powers,  as 
they  were  known  to  the  common  law,  are  abolished  in 

Michigan  and  a  statutory  code  substituted.  9  / 

A    ' 
Chapters  238  and  239.  £.*"**       »  *  * 

§8829  to  §8917  Comp.  Laws,  1897.       ,  I  $  ** 

All  uses  and  trusts  which  existed  prior  to  the  revision 
of  the  statutes  in  1846  which  are  not  authorized  by  the 
provision  of  Chapter  238,  were  converted  into  legal  es- 
tates in  the  beneficiaries.  » * '  *  _  ^  & 

t  7****^  /  >  *  ' 

§8829-8830  Comp.  Laws,  1897.  «-  ,  *>    ^  s 

Passive  or  naked  trusts  are  abolished  and  the  legal 
title  vests  in  the  person  entitled  to  the  rents  and  profits. 

§8831-8833  Comp  Laws,  1897.  c  .t -"*+***•'  '^' 

1/5-47'     '/^*7 

Under  this  rule  a  grant  to  "A"  in  trust  for  the  use 
and  benefit  of  "B"  vests  title  in  "B."  "A"  takes  no 
estate  or  interest,  legal  or  equitable.  A  conveyance  from 
"B"  alone  will  pass  title  and  a  conveyance  from  "A" 
will  pass  nothing. 

La  Grange  vs.  L' Amour eaux,  1.  Barb  Ch.,  16. 

If  the  party  named  as  trustee  in  such  a  conveyance 
has  any  beneficial  interest,  the  trustee  not  the  benefi- 
ciary takes  the  legal  title. 

King  vs.  Townsend,  36  N.  E.,  513. 


140  TEUSTS. 

A  conveyance  by  a  person  whose  only  interest  is  the 
rents  and  profits  of  land  under  a  trust,  is  void,  unless 
the  trust  be  to  pay  one  gross  sum,  not  several  sums. 

§8847    Comp.    Laws,    1897. 

\ 

The  purchase  from  a  trustee  is  not  responsible  for 
the  proper  application  of  the  funds. 

§8850   Comp.   Laws,    1897. 

When  the  purpose  for  which  a  trust  is  created  has 
$  **        ^"ceased,  the  estate  of  the  trustee  terminates. 

A»a 

ft  §8851    Comp.   Laws,    1897. 

The  last  two  propositions  apply  with  like  effect  to 
x-  powers. 

§8885    Comp.    Laws,    1897. 

The  effect  of  these  rules  may  be  illustrated  by  a  devise 
to  an  executor  in  trust  or  a  power  to  an  executor  to  sell 
lands  of  a  decedent  to  pay  debts  or  to  pay  incumbrances. 
When  the  debts  or  incumbrances  are  paid,  the  power 
of  sale  in  the  trustee  or  executor  terminates.  There- 
after his  deed  will  not  pass  title. 

Powers  and  trusts  are  distinguishable  in  that  a  trust 
requires  title  of  the  property  affected  in  the  trustee 
while  a  power  requires  not  title  whatever. 

A  charge  of  debts  or  legacies  upon  land  does  not  of 
itself  confer  any  power  to  sell  the  lands  to  satisfy  the 
charge.  Such  a  claim  is  in  the  nature  of  an  incumbrance. 

A  power  may  be  created  by  express  terms  or  by  im- 


*_'* 


POWER  or  ATTORNEY.  141 

plication  or  sometimes  a  void  trust  is  valid  as  a  power 
under  the  statute. 

A  power  can  only  be  exercised  by  a  person  capable 
of  holding  and  alienating  lands. 

§8822  Comp.  Laws,  1897. 

V  '        -          —  »^ 

Where  a  power  is  vested  in  several  persons,  all  must 
unite  in  its  execution. 

§8844  Comp.  Laws,  1897. 

/    '    V" 

In  case  of  the  death  of  one  of  the  donees  the  survivor 
may  act. 

Supra. 

When  the  consent  of  a  third  person  to  the  execution 
of  the  power  is  required,  the  consent  shall  be  expressed 
in  the  instrument  by  which  the  power  is  executed  or 
certified  upon  the  instrument  and  the  instrument  or  cer- 
tificate executed  by  such  person. 

§8904  Comp.  Laws,  1897. 


It  is  not  necessary  to  recite  a  power  in  a  conveyance. 
If  a  conveyance  is  made  and  the  grantor  had  no  title 
but  did  have  a  power  of  sale,  the  instrument  is  ordinar- 
ily an  execution  of  the  power  and  will  pass  title. 

§8906   Comp.   Laws,    1897.     c-e  .*****. 'f^,     / 

What  has  been  said  of  powers  does  not  apply  to 
powers  of  attorney.  The  rules  of  agency  govern  such 
instruments  as  to  their  construction,  and  the  rules  of 
conveyancing  govern  their  execution. 


142  TITLE  THEOUGH  PROBATE  SALES. 


TITLE  THROUGH  PROBATE  SALES. 

Since  1809  statutory  provisions  have  existed  author- 
izing administrators  and  executors  to  sell  land  for  the 
payment  of  debts  where  the  personal  estate  is  insuffi- 
cient. 

Sales  may  now  be  made: 

1.  To  pay  debts. 

2.  To  pay  legacies  charged  upon  lands. 

3.  For  distribution. 

4.  For  preservation  or  to  prevent  sacrifice  or 
when  for  the  best  interest  of  all  interested  or  to 
carry  out  the  provision  of  a  will. 

Sales  for  the  purposes  named  in  the  fourth  subdivi- 
sion excepting  that  to  carry  out  the  provisions  in  a  will 
was  first  authorized  by  Act  121,  P.  A.  1897. 

This  act  was  declared  unconstitutional  in  Bresler  vs. 
Delray  Real  Estate,  etc.,  Assoc.,  156  Mich.,  3. 

Guardians  of  minors,  insane  persons,  and  spendthrifts 
are  authorized  to  sell  the  land  of  their  wards  when  the 
personal  estate  is  insufficient: 

1.  To  pay  debts. 

2.  To  pay  the  expenses  incurred  by  the  state 
or  any  county  for  care  and  maintenance. 

3.  When  income  is  insufficient  to  maintain  the 
ward  and  his  family  or  to  educate  him  if  a  minor 
or  his  children. 

4.  When  the  court  is  satisfied  that  sale  will 
be  best  for  his  best  interest. 


DE  FACTO  ADMINISTRATOR.  143 

Assuming  that  a  guardian  or  administrator  or  execu- 
tor has  been  legally  appointed,  the  tests  to  be  applied 
to  such  sales  are: 

1.  Was  a  license  granted  by  a  court  having 
jurisdiction? 

2.  If  a  bond  was  required,  was  it  given  and 
approved  by  the  Judge  of  Probate. 

3.  Was  the  oath  before  sale  taken? 

4.  Was  notice  of  sale  posted  in  three  public 
places  in  the  ward  or  town  where  the  land  is 
situated  six  weeks  previous  to  the  day  of  sale, 
and  notice  published  once  a  week  for  six  weeks 
previous  to  sale? 

5.  Were  the  premises   sold  within  one  year 
after  the  license  was  granted  and  the  sale  con- 
firmed? 

If  the  facts  suggested  exist  the  sale  will  be  sustained. 

If  the  license  is  granted  by  the  Probate  Court  of  the 
proper  county  it  will  be  sufficient. 

Howard  vs.  Moor,  2  Mich.,  233-4. 

Failure  to  verify  the  petition  for  license  will  not  af- 
fect the  validity. 

Nor  failure  to  properly  publish  the  order  for  hearing. 
Wood  vs.  Monroe,  17  Mich.,  238. 

A  sale  by  a  de  facto  administrator  has  been  sustained. 
Supra. 


144  TITLE  THEOUGH  CHANCERY  SALES. 


TITLE  THROUGH  CHANCERY  SALES. 

The  Chancery  Court  is  authorized  to  appoint  a  special 
guardian  to  sell  the  interest  of  an  infant,  idiot,  lunatic 
or  other  incompetent  person. 

Under  this  section  application  is  made  by  the  general 
guardian  or  if  none,  by  the  next  friend  of  the  incompe- 
tent, to  the  court  in  the  county  where  the  incompetent 
resides  if  a  resident  of  the  state  and  county  where  the 
land  lies,  if  a  non-resident  of  the  state.  This  require- 
ment is  jurisdictional. 

The  special  guardian  must  give  a  bond  not  only  to 
account  and  pay  over  the  proceeds  but  also  for  the  faith- 
ful performance  of  his  trust. 

§536  Comp.   Laws,   1897. 


The  bond  is  jurisdictional  and  the  court  has  no  power 
to  waive  it. 

Blanchard  vs.  Blau,  N.  Y.  Sup.,  418. 

Tne  court  has  no  power  to  order  a  sale  in  contraven- 
tion of  the  terms  of  will  through  which  the  incompetent 
derives  title. 

§541   Comp.   Laws,   1897.  ^ 


Prior  to  the  amendment  of  1883  the  statute  applied 
to  infants  only  and  did  not  include  insane  and  other  in- 
competent persons. 

It  is  doubtful  whether  under  this  statute  the  interest 
of  a  spendthrift  can  be  sold. 


TITLE  THKOUGH  EXECUTION  SALES.          145 

The  adjudication  that  he  is  a  spendthrift  only  deter- 
mines that  he  is  unfit  to  have  the  care  and  management 
of  his  property. 

Rice  vs.  Rice,  50  Mich.,  448. 

The  fact  that  one  is  adjudicated  a  spendthrift  does 
not  affect  his  competency  to  make  a  will. 

Supra. 

TITLE  THROUGH  EXECUTION  SALES. 

The  points  of  inquiry  where  title  is  derived  through 
execution  sale  are: 

.  1.  Was  a  judgment  or  decree  legally  rendered 
by  a  court  having  jurisdiction  of  the  subject  mat- 
ter and  of  the  person  of  an  owner  or  part  owner 
of  the  land? 

2.  Was  a  levy  legally  made  and  notice  filed  in 
the  Register's  office  describing  the  land? 

3.  Was  notice  of  sale  describing  the  land  post- 
ed in  the  township  or  city  where  the  lands  were 
sold  six  weeks  previous  to  the  sale,  and  if  the 
sale  were  made  in  a  different  town  or  city  than 
the  place  where  the  land  is  situated,  was  like 
notice  posted  in  the  same  manner  in  the  township 
where  the  lands  are  situated? 

4.  Was  such  notice  published  once  each  week 
for  six  weeks  previous  to  the  sale  in  a  newspaper 
printed  in  the  county? 

5.  Was  the  sale  made  at  the  Court  House  in 
the  county  where  the  land  was  situated  between 
9  a.  m.  and  sunset? 


146  DOWEE. 

6.  Was  the  land  sold  in  parcels  in  the  order 
directed  by  the  defendants  1 

7.  Was  the  purchaser  disqualified  from  pur- 
chasing? 

8.  Was  a  certificate  of  sale  recorded  within 
ten  days  after  sale? 

9.  Was  the  sale  made  within  ten  years  after 
entry  of  judgment  or  decree? 

10.  Was  the  sale  made  within  five  years  after 
making  the  levy? 

11.  Has  the  time  for  redemption  expired  with- 
out being  exercised? 

12.  Was  a  deed  made  and  within  ten  years 
after  the  expiration  of  redemption? 

The  failure  of  the  sheriff  to  give  notice  of  the  sale  in 
the  statutory  manner  suggested  will  not  invalidate  the 
title  of  a  purchaser  in  good  faith. 

§9173    Comp.    Laws,    1897. 


Since  September  28th,  1889,  under  §9224  Comp.  Laws, 
a  levy  is  superior  to  the  rights  of  prior  grantee  or  mort- 
gagee whose  instruments  are  not  recorded  prior  to  the 
filing  of  the  notice  of  levy  in  the  Register's  office. 

Actual  notice  afforded  by  possession  will  protect  such 
an  owner  or  lienor  against  the  operation  of  this  statute. 


DOWER. 

It  must  be  remembered  that  no  execution,  probate  or 
other  judicial  sale  of  the  husband's  interest  in  real  es- 
tate will  affect  the  wife's  dower. 


TITLE  BY  PARTITION.  147 

Dower  can  only  be  released  in  the  manner  provided 
by  the  statute.  It  cannot  be  transferred  to  a  third  per- 
son while  inchoate. 

Gailbraith  vs.  Fleming,  60  Mich.,  408. 

Under  the  statute  and  case  cited  it  would  seem  to  be 
the  rule  of  law  that  speculation  in  an  estate  in  dower  is 
prohibited  and  that  the  estate  is  inalienable  except  to 
one  who  holds  the  fee  title  until  after  the  death  of  the 
husband  and  the  assignment  of  the  interest  to  a  specific 
parcel  of  land. 


TITLE  BY  PARTITION. 

Under  the  Michigan  laws  the  Probate  Court  and  the 
Chancery  Courts  are  given  jurisdiction  over  partition. 

Voluntary  partitions  between  common  owners  have 
always  been  recognized  in  Michigan,  New  York  and 
Wisconsin. 

Michigan  has  sustained  a  voluntary  partition  as 
against  an  incompetent  person  when  consented  to  by  his 
guardian. 

Hunt  vs.  Eabitoay,  125  Mich.,  137. 

In  some  states  a  voluntary  partition  is  held  void  un- 
der the  statute  of  frauds ;  such  is  the  rule  in  Illinois. 

But  in  that  state  where  common  owners  have  each 
conveyed  specific  parcels  of  the  common  land  to  others, 
the  court  has,  when  the  transaction  is  followed  by  a 
considerable  lapse  of  time,  presumed  a  lost  writing. 
Marke  vs.  Wakeman,  107  III.,  251. 


148  PROBATE  PARTITION. 

Recitals  in  ancient  deeds  have  been  held  sufficient  evi- 
dence of  a  voluntary  partition  where  followed  by  pos- 
session. 

Hunt  vs.  Rdbitoay,  supra. 

The  most  conclusive  authority  for  the  rule  that  where 
the  tenants  in  common  have  conveyed  specific  parcels 
of  the  common  land  in  severalty,  the  deeds  are  evidence 
of  a  voluntary  partition,  is 

Eaton  vs.  Talmage,  24  Wis.,  217. 

This  was  an  ejectment  suit  and  only  a  legal  title  can 
be  shown  in  such  a  cause. 

The  court  lays  down  the  rule : 

1  'Where  there  are  two  tenants  in  common,  each 
owning  an  undivided  half  of  land,  neither  can 
make  a  partition  that  will  be  binding  on  the  oth- 
er by  assuming  to  convey  either  half  specifically. 
But  if  one  does  so  convey  the  other  would  be  at 
liberty  to  acquiesce  and  accept  the  remaining 
half,  and  if  he  should  do  so  by  conveying  that 
specifically,  the  two  conveyances  would  operate 
as  a  complete  and  binding  partition." 

This  decision  seems  to  be  founded  upon  good  sense 
and  the  principle  will  often  be  involved  in  the  old 
French  titles  in  this  locality,  particularly  up  the  shore 
of  Lake  St.  Glair  and  in  Macomb  and  St.  Glair  counties. 


PROBATE  PARTITIONS. 

When  title  comes  through  a  probate  partition  the  in- 
quiries  are: 


PARTITION  IN  CHANCERY  COURT.  149 

1.  Has  the  court  made  an  order  assigning  the 
residue  ? 

2.  Has  notice  been  given  in  the  manner  direct- 
ed by  the  court? 

3.  Have    guardians    been    appointed    for    all 
minors  or  incompetents  and  agents  for  all  heirs, 
non-residents  of  the  state? 

4.  Has  notice  been  given  to  all  interested  by 
the  commissioners  of  the  time  and  place  the  par- 
tition is  to  be  made? 

5.  Have  the  commissioners  filed  their  report 
and  has  it  been  confirmed? 


PARTITION  IN  THE  CHANCERY  COURT. 

This  proceeding  is  purely  statutory  and  governed  by 
Chap.  304,  Comp.  Laws,  1897.  «v£  fr~tt  "r-s 

It  can  only  be  maintained  by  a  person  who  has  an 
estate  in  possession. 

The  bill  must  be  verified. 

General  guardians  represent  their  wards. 

Every  person  having  an  interest  in  the  premises, 
whether  in  possession  or  otherwise,  and  every  person 
entitled  to  dower  should  be  parties,  also  mortgagees 
and  other  lienors. 

The  proceedings  to  bring  in  a  non-resident  or  un- 
known party  differs  from  the  ordinary  chancery  prac- 
tice. The  order  for  appearance  is  a  three  months '  order 
and  the  order  must  contain  a  description  of  the  land. 

$11023  Comp.  Laws,  1897. 


150  PARTITION  IN  CHANCERY  COURT. 

The  commissioners  appointed  must  give  notice  of 
their  meeting  to  the  parties  interested. 

Simpson  vs.  Simpson,  59  Mich.,  71. 

All  the  commissioners  must  meet  together  but  the 
act  of  a  majority  will  be  valid  and  binding. 

Jurisdiction  of  the  person  by  service  of  process  or 
service  or  publication  of  a  proper  order  and  notice  by 
the  commissioners  are  undoubtedly  essential  to  a  valid 
partition. 

Dower  is  not  affected  unless  the  wife  is  made  a  party. 
Griener  vs.  Klein,  28  Mich.,  12. 

Most  partitions  are  brought  because  of  the  incapacity 
of  a  minor  or  insane  tenant  to  consent  to  an  amicable 
division.  Suit  in  such  a  case  is  unnecessary.  The  gen- 
eral guardian  of  a  minor  or  insane  person  can  petition 
the  court  exparte  for  leave  to  agree  to  the  partition 
and  with  the  approval  of  the  court  convey  his  ward's 
interest  in  return  for  a  conveyance  to  his  ward  of  a 
proper  portion  of  the  common  premises  by  the  other 
tenants. 

>84,  11087,  11088,  11090  Comp.  Laws,  1897. 


The  inquiries  I  have  suggested  are  only  to  guide  you 
in  recent  transactions. 

A  title  might  involve  every  principle  I  have  pointed 
out  and  fail  under  each  of  the  suggested  tests  when  ap- 
plied, and  because  of  adverse  possession  be  unassailable 
and  legally  marketable. 


ABSOLUTE  IMPARTIALITY.  151 

Either  examiners  of  titles  must  pronounce  that  title 
marketable  which  cannot  be  successfully  assailed  in 
the  courts,  or  the  abstract  and  the  lawyer  must  be  elimi- 
nated in  the  transfer  of  lands  and  a  substitute  found 
that  will  not  be  an  obstruction  to  business. 

I  have  suggested  some  of  the  leading  principles  of  the 
subject  of  conveyancing  and  attempted  to  illustrate 
their  practical  application  in  the  examination  of  land 
titles.  With  this  introduction  to  the  subject  I  wish  to 
say  in  conclusion: 

In  the  practice  of  conveyancing,  parties  with  hostile 
interests  will  seek  your  service  in  the  same  transaction. 
Often  one  is  a  client  and  the  other  a  stranger  without 
other  counsel.  Under  such  circumstances  your  position 
is  not  that  of  a  partisan.  The  ethics  of  your  profession 
require,  and  common  honesty  demands  that  you  act  with 
absolute  impartiality  and  guard  the  interests  of  the 
stranger  with  the  same  zeal  that  you  look  after  the 
rights  of  your  client.  Do  for  the  stranger  what  you 
would  do  for  your  client  were  their  positions  reversed. 
There  is  no  other  course;  there  is  no  excuse  for  any 
other  or  different  action. 


INDEX. 


ABSOLUTE   FEE 

conveyance   of  an,  95 

donee  takes  an,  89 
ABSTRACTS  OF  TITLE 

estate  for  life  as  to,   88 

tenant  for  life  as   to,  89 
ABSTRACTS  OF  TITLE 

examination  of,   114 

land  contract  as  to,  107 

memorandum  of  sale  as  to,  105 
ACCUMULATIONS 

express  trust  for,  when,  96 

married   woman   as   to,   86 

rents  and  profits  as,  83 
ACKNOWLEDGMENT 

consular  agents  taking,  76 

contents  of,   72 

deed  as   to,   12 

execution  in  another  state  as  to,  75 

officer  of  a  corporation  can  take,  73 

requisite   of  recording  laws   is   the,  71 
ACQUAINTANCE   OF   OFFICER 

certificate  of  acknowledgment  contains,  72 
ACTION 

defense  to  an,  upon  covenants,  57 
ACTION  FOR  BREACH  OF  COVENANTS 

tax  as  to,  14 
ACTUAL  POSSESSION 

northwest   territory's   owners    of   land    by,   33 
ADMINISTRATOR 

recital  in  deed  to  a  person  as,  20 
ADVERSE   POSSESSION 

state  as  to,  42 
AFFIRMANCE 

infant  may  make,  15 
AFTER-ACQUIRED  TITLE 

quit-claim  never  passes  an,  52 

warranty   deed  passes   an,   52 
AGENT 

notice  to,  is  notice  to  principal,  79 
ALIEN 

operative  word  in  a  deed  is,  26 

premises   as  to,   11 
ALIENABILITY 

rules  of,   97 
ALIENATION 

estates  in  land,  82 

powers   of,   incapable,   when,   88 

suspended,   when,   95 

suspension   of,   50 

trust  for  a  term  of  years  is  void,  98 


2  INDEX. 

ALLOTMENT  BY  THE   BARONS 

inferiors  to  get,  2 
ALTERNATIVE   ESTATES 

creation   of,   83 
ANCIENT  CONVEYANCES 

precaution   of,   27 
ANNUITY 

p.ayment  of,  from  rents  and  profits,  99 
ARPENT 

definition  of,  34 
ARSENAL   GROUND 

land  known  as,  35 

location   of,   36 
ARTIFICIAL  MONUMENTS 

local  inquiries  as  to,  37 
ASKIN   FARM 

location    of,    35 
ASSIGNMENT 

land  contract  as  to,  107 

possession  of  land  by,  entitling  one  to  rents  and  profits,  84 

prohibition   of  the   life    tenant   to   make,    89 

rents  and  profits  in,  of  a  trust,  96 
ASSIGNMENT  OF  TRUSTS 

trustee  cannot   make   them   an,   87 
ASSIGNS 

words  of  limitation  in  deeds  as,  23 
ASSUMED   NAMES 

trade  names  as,  22 
ASSURANCES 

covenant  of  further,  54 
ATTORNEY 

fee  of,  as  a  covenant  in  a  mortgage,  100 

knowledge   of,   imputed   to   client,   79 
AUCTION 

covenant  in  a  mortgage  regarding  sale  at,  101 
BARGAIN 

operative   word   in    deed   is,   26 

premises  as  to,  11 
BARGAIN   AND   SALE 

deed  as   to,  4 
BARONS 

vassal   to  the  king,  2 
BASE   LINES 

establishment  of,  29 
BEAUBIEN  FARM 

location   of,   37 
BENEFICIAL   INTEREST 

expressed  trust  as   to,   86,  96 

passing  of,  for  benefit  of  creditors,  91 
BENEFICIAL   POWER 

definition   of,   88 

limitation    of,   as   to   their  validity,   90 

married   woman   as   to,  89 
BENEFICIARIES 

interest   in    land   by.   85 
BENEFIT  OF  CREDITORS 

express   trust  for,   96 

sale   of  land   for,  85 
BILL  IN  EQUITY 

compelling  conveyance  by,  85 


INDEX. 

BLACKSTONE'S  COMMENTARIES 

classification    of   conveyance,    5 

designation  in,  as  to  facts  of  a  deed,  10 

statements  in,  4 
BONA   FIDE   PURCHASER 

deed  without  convenants  as  to,  52 

knowledge  of  prior  defects  as  to,  79 

notice  of  prior  deed  as  to,  79 
BONDS 

interest  on,  101 
BOUNDARIES 

meander   lines  as   to,   44 
BREACH    OF   COVENANTS 

action  for,  14 

lease  for,   103 

remedy    for,    62 

visible  servitude  is  a,  57 
BREACH   OF  CONDITION 

estate  as   to,   49 
BUILDING   LINE 

restitution    regarding,   65 
BUILDING  RESTRICTIONS 

covenants  as  to  user  of  land  in,  61 
BRUSH   FARM 

location  of,  35 
BY-LAWS 

execution  covered  by,  24 
CASS  FARM 

location   of,  35 
CESTUI   QUE  TRUSTENT 

designation  as,  4 

estate   in  land   of,  87 
CHAINS  AND  FEET 

terms  used  in  measurement  as,  35 
CHANCERY   COURT 

authorization  of,  as  to  sales  of  land,  144 

title   in   a   sale   through,   144 
CHARGE  D'AFFAIRS 

acknowledgment  bv,   76 
CHARITABLE  TRUS'TS 

permission   of,  in   perpetuity,  99 
CLAIM 

creditors  impress  on  land  to  cover,  85 

possession  under,  of  title,  54 
CLAIMANT 

frontage    on    water    in   possession    by,    34 
CLERK 

taking  acknowledgments  by,  74 
CLIENT 

knowledge    of    attorney    binds,    79 
COMMERCIAL  LEASES 

reservations    in,   104 
COMMISSIONER   OF   COURT 

taking  acknowledgment  by,  74 
COMMON    LAW 

acknowledgment    of,    deed,   13 

gantor  cannot  deed  to  himself  at,  15 

middle   names   in   deeds   at,   18 
COMPASS 

use  of,  in  surveys,  32 


4  INDEX. 

COMPUTATION    OF   TIME 

date   of  instrument  creating  power  is   the  one   in,  94 
CONCLUSIONS 

deeds  as  to,  12 

execution   and   date    are    the,   66 
CONDITION 

alienation   as  a,  49 

covenants  as,  49 

deed  as  to,  12 

enforcement  of,  49 

forfeiture    of,    49 

illegal  acts  as  to,  49 

power  of  alienation  as  to,  50 

precedent  and  subsequent  are,  48 

provided  always   this  grant  is  upon,  48 
CONDITIONAL  LIMITATIONS 

definition   of,   49 
CONFIRM 

operative  word  in  a  deed  is,  26 

premises  as  to,  11 
CONFIRMATION 

deed  as  to,  26 

definition,   34 
CONSENT  OF  THIRD   PERSON 

execution  of,  same  as  conveyance,  93 
CONSIDERATION 

deed  as  to,  8 

early    conveyance    as    to,    4 

necessity   for,  in   deeds,   24 

one   dollar  and  other  valuable,   25 

payment    of,    by    another,    85 

premises  as  to,  11 

receipt  of,  in  deeds,  25 

third  parties  as  to,  24 

written  contract  as  to,  25 
CONSTRUCTIpN   AND    INTERPRETATION 

acts  of  parties  showing  their  understanding  affects,  39 

boundary  a  question  of  fact  in,  40 

building  restriction  as  to,  63 

clause  showing  intent  controls  a  general  description  in,  39 

facts  at  time  of  delivery,  39 

grantor's  rights  in,  40 

intent  of  parties  in,  overcome  all  arbitrary  rules,  40 

intention  of  parties  in,  39 

land-marks  and  monuments  control  courses  and  distances,  39 

particular   description    following  a   general   one,   the   former   gov- 
erns, 39 

permanent   monuments   control   artificial   ones   in,  39 

rejection  of  no  part  of  the  deed  affects,  39 

rules   for,   of  deeds,   38 
CONSUL 

acknowledgments  by,  76 
CONSULAR  AGENT 

acknowledgment   by,  76 
CONTRACT 

consideration  in  deed  not  fact  of  the.  25 

definition  of,  25 

covenant    synonymous   with,   52 


INDEX. 

CONTRACT— Continued 

identification  of  either  fact,  6 

memorandum  of  sale  as  to  a,  105 

mention  of  a,  in  a  deed,  41 

option  is  a,  106 
CONTRACT  OF  BARGAIN  AND  SALE 

deed  as  a,  4 
CONTRACT  OF  RECOVERY 

mortgage  as  a,  81 
CONTINGENCY 

estate  of  person  determined  by,  82 
CONTINGENT  REMAINDER 

creation  of,  82,  95 

prior   remainder  as   to,   50 

prohibition  in  the  creation  of,  83 
CONVERGENCE  OF  MERIDIANS 

inequality  of  sections  caused  by,  31 
CONVEYANCE 

clause  in  a,  creates  a  power,  92 

legal  disaster  in  a,  94 

origin  of  title  through,  Iz 

seal   as   to,   67 

title  through,  124 
CONVEY  AND  WARRANT 

deed  as   to,  8 
CORPORATIONS 

cestui  que  trustent  as,  4 

deeds  as  to,  23 

time  of  execution  in,  24 

existence  of,  perpetual,  3 

lands  held  by,  3 

recital  in  deed  of  name  of,  23 

seal  of,  attesting  the  deed,  24 

statutes  as  to,  24 

prohibiting  holding  of  land  by,  3 

strife  of,  with  legislative  power,  4 
COURSES  AND  DISTANCES 

land  described  by,  32 
COURT  OF  EQUITY 

enforcement  of  oral  agreements  in,  9 

execution  of  power  by,  91 

party  of  interest  in,  23 

defective  execution  of  a  power  remedied  in,  94 
COVENANT  OF  SEIZIN 

breach  of,  when,  55 
COVENANT  OF  QUIET  ENJOYMENT 

words  of  the,   57 
COVENANT  OF  WARRANTY 

breach  of,  58 

quiet  enjoyment   synonymous  with,  58 

words  of,  58 
COVENANTS 

assent  of  grantee  to,  53 

condition   of,   not   enforcible   when   benefits  cease,   62 

creation   of,  53 

deed  as  to,  12 

definition  of,  52 

effect  of,  limited  to  land  described,  54 

further  assurances   as   a,    54 

husband  and  wife  as  to,  44 

incumbrances  as,  54 


6  INDEX. 

COVENANTS— Continued 

knowledge  of  circumstances  no  defense  to  action  on,  57 

land   conveyed   covered  by,  59 

lease  contains  a,  103 

quiet  enjoyment  as  a,  54 
claim  as  to,  52 

remedies  for  a  breach  of,  61 

restrictions  as,  49 

right  to  convey  as  a,  54,  55 

seizin  as  a,  54 

several,  in  one  sentence,  53 

statutes   imply,   53 

warranty  as  a,  54 
COVENANTS  AGAINST  INCUMBRANCES 

date  of  delivery  as  to,  14 

words  of,  56 
COVENANTS  AS  TO  USER  OF  LAND 

building  restrictions  as  to,  61 
COVENANTS  OF  MORTGAGES 

payment  of  money  in,  100 
COVENANTS  RUN  WITH  THE  LAND 

warranty  and  quiet  enjoyment  are,  59 
CREDITORS 

claims  of,  subjected  to  special  and  beneficial  powers,  90 

claim  of,  impressed  on  the  land,  85 

court  in  chancery  compels  execution  of  power  in  trust  for  bene- 
fit of,  91 

deed  is  dc<-med  absolute  against  subsequent,  87 

express  trusts  for  the  benefit  of,  96 

recital  in  a  deed  as  to,  of  deceased  persons,  20 

rights  of,  with  reserved  powers,  89 
grantors   as  to,   24 
surplus  of  rents  and  profits,  86 

sale  of  land  for  the  benefit  of,  85 
DAMAGES 

action  of,  for  breach  of  covenant,  62 

liability  for,  by  landlord,  104 
DATE 

acknowledgment  of  deed  as  to,  13 

certificate   of  acknowledgments  contain,  72 

deeds  at  common  law,  13 
statutory,13 

delivery  of  deed,  13 

tax  paid  by  grantor,  14 

execution  of  deed,  13 

expiration  of  commission,  72 

premises  of  deeds  as  to,  11 

time  of  alienation  may  be  suspended  by  a  power  is  the,  when,  94 

creation  of  power  is  the,  97 
DEEDS 

acceptance  of,  by  grantee  binding,  53 

acknowledgment  of,   71 

alternative,   sustained,    Rule  20 

assurance  synonymous  with,  60 

care  in  the  spelling  of  names  in,  17 

cession   in  a,  from   Virginia,  33 

common  law  identity  of  names  in,  18 

conclusions  as  to,  12 

condition  as  to,  12,  48 


INDEX.  / 

DEEDS — Continued 

consideration  in,  24 

construction  and  interpretation  of,  38 

will,  71 
contents  of,  8 

delivering,  intended  to  be  effective  at  grantor's  death,  71 
conveyance  by,  6 

all  the  estate  grantor  has,  28 
corporation  in,  23 
covenants  as  to,  12,  52,  61 

incumbrances,  56 

quiet  enjoyment  in,  57 

seizin,  54 

unnecessary  to  be,  52 

warranty  in,  58 
creditors  of  grantors  as  to,  24 
defective,  because  of  uncertainty,  23 
definition  by  Blackstone,  5 

Washburn,  5 
delivery  of,  beyond  recall  necessary,  69,  70 

third   person   for   grantee   passes   title   though   a,   is   later,  70 
description  in  28,  41 
designation   of  grantor  in,  15 
distinction   between   void   and  voidable,   15 
early  history  of,  4 
effect  of  unrecorded  or  unacknowledged,  41 

essential  matter  remains,  not  vitiated,  40 
entry  book  as  to,  78 
essential  to  validity,  3 
execution  by  grantor  only,  7 
explanation  of  covenants  in,  52 
father  and  son  with  same  initials  in,  18 
formal  written  contract  is  a,  5 
grantor  and  grantee  in  every,  14 

as  trustee,  20 
habendum,   45 

fee  simple,  etc.,  11 
husband  and  wife  as  to,  44 
identity  by  their  indentures,  7 
infant  cannot  make,  15 
insane  person  cannot  execute  a,  15 
joint  tenancy,  21 
kinds  of,  in  Michigan,  6 
legal  effect  of,  with  covenants,  52 
limitations  in,  23 
maps  and  plats  mentioned  in,  40 

money  payment  for,  to  third  person,  constitutes  delivery,  70 
mortgages  as,  81 
name  in  the,  18 

passing  title,  20 
operative  words  in,  26 
origin  of,  5,  6 
partition  as  to,  7 
partners  in  grantee's,  22 
parts  of,  in   Blackstone,  10 

party  with  control  of,  is  essential  element  of  delivery,  70 
possession  by  grantor  after  delivery  of,  hazardous,  81 
premises  contain  consideration  of,  11 

date  in,  11 

description  of  the  land  as  to,  11 

fee  or  less  than  fee  as  to,  11 


8  INDEX. 

DEEDS— Continued 

grant,  bargain,  sell,  release,  alien  and  confirm  as  to,  11 
parties  as  to,  11 

presumption  that  similar  sounding  names  are  the  same  person  in, 
17 

proof  when  person  is  known  by  two  names  in,  18 

purchaser  has  relief  under  his  covenants,  16 

receipt  of  consideration  in,  25 

recitals  accepted  as  their,  16 
covenant,  when,  53 
former  name  of  married  woman,  19 
married  or  single,  16 
occupation  as  to,  20 

recording  of,  13 

prima  facie   evidence  of  delivery,  69 

reddendum  in,  12,  46 

reference  to  another  deed,  41 

restriction   in,   61 

retaining  of,  by  grantor  invalidates  the  instrument,  70 

seal  as  to,  12,  67 

signature  as  to,  12,  53 

signing  as  to,  66 

subsequent  purchaser  recording  his,  first,  77 

suspending  effect  of,  during  lifetime  of  grantor,  70 

temporary  filing  of,  76 

tenendum  in,  12,  46 

trade  name,  void  because  of  uncertainty,  22 

trust  expressed  in,  void  when,  87 

not  contained  in  conveyance,  deemed  absolute,  87 

validity  does  not  depend  on  what  in  a,  16 

variance   in   name   or  initial  in,   18 

witnesses  in,  12,  68 
DEEDS  AND  MORTGAGES 

execution  and  recording  of,  as  a  conveyance,  92 
DEEDS   OF  RELEASE 

common  law  as  to,  9 
DEEDS   POLL 

common  law  as  to,  6 

date  of  a  deed  as  to,  11 

origin  of,  6 
DEFAULT 

land   contract  as   to,  107 

tenant  is  in,  as  to  lease,  103 
DEFENSE  OF  THE  TITLE 

covenant  as  to,  12 
DEFICIENCIES  IN  THE  RECORD 

entry  book  as  to,  78 
DELIVERY 

date  of,  of  deed,  13 

quit-claim  deed  as  to,  52 

grantor  remains  in  possession   after,  80 

necessity  for,  69 

patents  of  land  as  to,  71 

statute  of  limitations  runs  from,  55,  56 

unconditional,  to  a  third  person  is  escrow,  70 
DESCENT 

laws  of,  133 
DESCRIPTION 

arpent  as  a  basis  of,  34 

certainty  of,  37 

courses  and  distances  in,  32 

deed   as   to,   8 

extrinsic  evidence  as  to,  36 


INDEX. 

DESCRIPTION— Continued 

failure  to  designate  state  and  county  in,  38 

front  and  rear  concessions,  34 

indefinite,  explained,  38 

land  board  as  to,  33 

lazy  man's,  36 

premises  as  to,  11 

private   claims   as   to,   33 

purpose  of,  in  deeds,  28 

sufficiency   of,   granting  all   the  land   of  a   person,   38 
DESIGNATED   BENEFICIARIES 

power  in  a  trust  is  imperative  in,  91 
DEVICE  OR  SCROLL 

effect  of,  67 
DEVISE 

distinct  parcels  of  land  by,  to  three  different  daughters,  99 

executor  or  trustee  is  not  authorized  to  receive  rents  and  profits 
in  a,  when,  86 

husband  and  wife  take  by  entirety,  21 

possessor  of  land  by,  entitles  one  to  rents  and  profits,  84 

power  is  created  by  a,  92 

words  of  inheritance  as  to,  46 
DISCRETIONARY    POWER 

execution  of,  91 
DISPOSITION  OF  LAND 

right  of  possession  as  to,  84 
DISQUALIFICATION 

notary's  interest  in  transaction,  73 
DONEE 

grant  by,  of  a  power  in  excess  of  authority,  93 
DOWER 

breach  of  covenant  against  encumbrances  is  an  outstanding  right 
of,  56 

effect  on,  146 
DRAFTING  OF  CONVEYANCES 

instructions  in,  110 
DUPLEX  FLAT 

restrictions  regarding,  64,  65 
EARLY  SETTLERS 

narrow  strips  of  land  held  by,  34 
EASEMENT 

breach  of  covenant  against  encumbrance  is  an,  56 

specific  mention  of,  43 

visible,  affecting  a  covenant  against  encumbrances,  57 
EDUCATIONAL  TRUST 

permission  of,  in  perpetuity,  99 
EIGHTH  LINES 

definition  of,   31 
EJECTMENT 

equitable  title  as  to,  23 
ENCUMBRANCES 

any  right  vested  in  a  third  person  is  an,  56 

breach  of  the  covenant  against,  56 

covenant  against,  56 

two  kinds  of,  57 
ENTIRETY 

husband  and  wife  are   tenants   by  the,   21 
EQUITABLE  CONVERSION 

power  of  sale  amounts  to,  when,  98 
EQUITABLE  TITLE 

dower  at  common  law  attached  to  an,  110 

law  courts  do  not  recognize,  23 


10 


INDEX. 


ESCROW 

delivery   of   deed   in,   70 
ESTATES 

contents  of,  20 
estate  for  life 

absolute  power  of  disposition  in,  88 
habendum  as  to,  11 
estate  for  years 

habendum  as  to,  11 
estate  in  expectancy 

creation  of,  83 
estate  in  fee 

corporation  as  to,  23 
estate  in  fee  simple 

habendum  as  to,  11 
estate  in  land 

cestui  que  trustent  as  to,   87 
estate  in  real  property 

suspension  of  alienation  in,  82 
estate  limited 

habendum  as  to,  45 
estate  less  than  fee 

power  as  to  an,  88 
estate  of  trustee 

title  of,  connected  with  power  or  disposition,  84 
ESTOPPEL 

owner  of  restricted  land  is  estopped,  when,  64 
EXAMINATION  OF  TITLES 

instructions  as  to,  114 
EVICTION 

breach  of  covenants  by  ,  58 
EVIDENCE 

admission  of  instrument  as,  77 
extrinsic,  may  be  resorted  to,  36 
parol,  as  to  consideration,  25 
person  in  deeds  known  by  two  names,  18 
possession  of  deed  is,  of  delivery,  69 
recitals  are  not,  16 
recording  of  deed  is,  of  delivery,  76 
transcript  of  record  of  conveyance  read  in,  77 
note  is,  of  indebtedness,  101 
EXCEPTION  TO  THE  GRANT 

reservations   compared  with,  47 
EXECUTION 

corporation  as  to,  24 

deed  on  same  footing  as,  levy,  78 

evidence  as  to,  77 
defect  in,  of  a  deed,  81 
powers 

creation  of  estate  under  the,  94 

donor    prohibited    from    dispensing    with    statutory    require- 
ments in,  9 

proof  of,  of  a  deed,  12 
title  through,  sale,  145 
mandate  as  to,  92 
EXECUTORY  CONTRACTS 
sale  of  land  by,  77 
words  of  inheritance  as  to,  4f> 
EXECUTORY   CONTRACTS  OF  SALE 
contents  of.  107 


INDEX.  11 

EXPECTANT  ESTATES 

prohibition  of,  83 

release  power  to,  by  life  tenant,  90 
EXPRESS  TRUSTS 

creation  of,   how,  96 

statutes  relating  to,  applicable  to  powers,  91 

purposes  cease  when,  88 
EXTINGUISHMENT  OF  POWER 

release  by  life  tenant  operates  as  an,  when,  90 
FACT  OF  ACKNOWLEDGMENT 

certificate  of  acknowledgment  contains,  72 
FACTORY 

restrictions  regarding  a  small,  65 
FAILURE  OF  THE  TRUST 

land  goes  to  whom  on,  87 
FATHER  AND  SON 

condition  as  to  support,  12 
FEE 

allotment   by   barons,  2 

city  streets  as  to  the,  41 

contingent  remainder  as  to,  50 

estate  in,  absolute  when,  88 

grantor's  covenant  as  to,  12 

king  to  hold  the,  2 

possession  as  to  the,  82 

power  merged  into  a,  95 

owner  of,  conveying  a  part,  61 
FEE  SIMPLE 

habendum  as  to,  11 

covenant  as  to,  54 

deeds  of  land  in,  110 

grant  to  a  corporation  resulting  in  a,  45 

grant  to  a  trustee,  45 

inflexible,  28 
FEOFFMENT 

oral  testimony,  3 

original  conveyance  as,  3 
FEUDAL  SYSTEM 

conveyances  under,  1 

corporation  in,  3 

defended  upon  the  armed  array,  3 

introduction  in  England,  2 

oral  declaration,  2 

preservation  of,  3 

warranty  was  an  incident  of  every  grant  under  the,  53 
FIRE  ENGINE  HOUSE 

restrictions  regarding,  64 
FLAT 

restrictions  as  to,  64 
FORECLOSURE  IN  EQUITY 

attorney  fee  proved  in,  101 

chancery  suit  is  a,  130 
FORECLOSURE  OF  MORTGAGE 

contents  of,  128 

title  through,  128 
FORECLOSURE  OF  CONTRACTS 

forfeiture  by,  108 
FOREIGN   COUNTRIES 

deeds  executed  in,  75 
FORFEITURE 

land  contract  as  to,  107 


12  INDEX. 

FORFEITURE  OF  FEE 

baron  to  his  king,  2 
FORGERY  IN  A  DEED 

chattel  mortgage  as  to,  6 
FORMALITIES  IN  THE  EXECUTION 

ignoring  of,  when,  93 
FRAUD 

deed  by,  is  void,  15 
FREE  ACT  AND  DEED 

acknowledgment  is  a  declaration   that  the  execution  was  his,  71 
FRONT  AND  REAR  CONCESSIONS 

acts  of  congress  known  as,  34 
FIELD  NOTES 

definition  of,  31 
FURTHER  ASSURANCES 

covenant  of,  54,  49 

words  of,  59 
FUTURE  ESTATES 

creation  of,  void,  when,  83,  95 

creditors  and  purchasers  as  to,  88 

vesting  of,  remainders,  97 
GENERAL  DESCRIPTION 

sufficiency  of,   38 
GOVERNMENT 

definition  of.  lots,  31 

landmarks  were  set  by  the,  survey,  30 

original  owner  as  to,  patents,  33 
GOVERNOR  AND  JUDGES'  PLAN 

land  known  as,  35 

location  of,  35 
GRANT 

distinction  from  confirmation,  34 

former  definition,  27 

grantee  takes,  in  own  name  consideration  being  paid  by  another, 
85_ 

operative  word  in  deed  is,  26 

possession  from  a,  entitled  grantee  to  rents  and  profits,  84 

p.remises  as  to,  11 

reservations  repugnant   to,  48 

sufficiency  of  description  in  a,  of  all  lands  owned  by  a  person,  38 

voidable  deed  passes  the  title  in  the,  15 
GRANTEE 

acceptance  by,  is  presumed,  69 

capacity  of,  in  deeds,  19 

covenants  by,  enlorcible,  53 

deed  has  a,  14 

description  of,  19 

obligations  effecting,  16 

party  of  the  second  part,  15 

prior  notice  as  to,  79 

riehts  are  not  acquired  by,  in  a  void  deed,  15 

tenants  in  common  as  to,  21 

trustee  recited  in  deed,  20 

use  of  the  purchase  as  to,  4 
GRANTOR 

covenants  as  to,  12 

conveyance   cannot  be  made  to  himself,  15 

deed  has  a,  14 

deeds  designate,  15 

delivery  must  be  made  by,  69 


INDEX.  13 

GRANTOR— Continued 

intention  of,  49 

name  not  in  the  deed,  18 

notice  to,  of  institution  of  suit,  59 

notice  to  grantee  is  not  notice  to.  SO 

obligations  effecting,  16 

parting  with  control  of  deed  by,  70 

possession  of,  after  delivery,  80 

presence  of,  72 

reservation  to,  of  any  power  he  could  grant  to  another,  92 

rights  of,  beyond  the  street  line,  42 
GREAT  LAKE 

bed  of,  title  in  people,  42 

land  bordered  on,  31 
GROSS 

definition  of,  87 
GUARDIANS 

authorization  of,  to  sell  lands  when,  142 
HABENDUM 

deed  as  to,  11 

devise  in  a  will  as  to,  46 

executory  contract  as  to,  46 

grant  to  a  corporation  in,  45 

heir  in,  45 

intent  of  parties,  45 

limitation  of  estate  in,  45 

trustee  accepts  a  grant  in,  45 
HEIR 

recital  in  a  deed  as  to,  20 

word  of  limitation  as  to,  23,  27 
HIGH  WATER  MARK 

rule  as  to  title  to  land  by,  42 
HISTORICAL  INTRODUCTION 

feudal  system,  1,  2 

public  delivery,  2 
HOMESTEAD  ENTRIES 

public  domain  as  to,  29 
HUSBAND  AND  WIFE 

deed  runs  to  several  two  of  whom  are,  22 

disqualification  as  witnesses  of  deeds,  68 

estates  by  entirety,  22 
common,  22 

jointure  in  deed  of,  as  to  title  of  either,  44 

tenants  by  entirety,  21 
INDENTIFICATION 

requirement  of,  in  acknowledgments,  72 
IMPLIED  TRUST 

defect  of  title  in,  85 
IMPROVEMENTS 

effect  on  title  by.  9 
INCHOATE  DOWER 

married  woman  as  to,  61 
INCUMBRANCES 

covenants  as  to,  12 
against,  54 

land  contract  as  to,  107 
INCOMPETENT  PERSONS 

guardian  of,  to  sell  lands,  when,  144 
INDENTURE 

common  Jaw  as  to,  6 

definition  of,  6 


14  INDEX. 

INFANTS 

grantees  as,  19 
INFLAMMABLE  OR  COMBUSTIBLE  MATTER 

accumulation  of,  104 
INFERIORS  OR  VASSALS 

allotment  of  lands  to,  2 
INHERITANCE 

title  through,  132 
INJUNCTION 

effective  remedy  is,  for  threatened  breach  of  covenant,  6i 
INLAND  LAKES 

bordered  upon,  31 

ownership  of  bed  of,  42 
INSANE  PERSONS 

grantees  as,  19 

guardians  of,  to  sell  land,  when,  142 
INSOLVENCY  OF  TENANT 

covenant  in  a  lease  as  to,  104 
INSTRUMENT 

defects  in,  81 

effect  of,  to  pass  title,  52 

entry  book  as  to,  78 
INSURANCE 

covenants  in  mortgages  as  to,  100 

clause  in  lands  contracts  as  to,  107 

instrument  shows,  27 
INTENTION 

recital  in  deed  showing,  28 

words  evidencing  an,  are  sufficient,  53 

power  shall  be  observed  as  to,  of  donor,  93 

reservation  to  a  stranger  as  to,  47 

saving  and  reserving  as  to,  48 
INTEREST 

bonds  bear,  101 

covenant  in  mortgage  as  to,  101 

rules  of  construction  overcome  by,  40 
INTERPRETATION 

rules  of,  of  deeds,  38 
INTERPRETER 

acknowledgments  by,  73 
INTRODUCTION 

requirement  of  an,  to  a  stranger,  72 
JOINT  TENANCY 

recital  in  a  deed,  21 
JOINT  TENANTS 

common  law  rule  as  to,  21 
JUDGE 

taking  acknowledgments  by,  74 
JUSTICE  OF  THE  PEACE 

taking  acknowledgment  by,  74 
LAND  BOARD 

proof  of  title  before  the,  33 
LAND  CONTRACTS 

contents  of,   107 

husband  and  wife  take,  by  entirety  in,  21 

parties  to,  rights  of,  108 

recording  laws  as  to,  78 
LANDLORD  AND  TENANT 

leases  by,  103,  104 
LAND-MARKS 

government   set,   30 


INDEX.  15 


LATITUDE 

basis  of  measurement  from,  29 
LAWFUL  TITLE 

eviction  under,  58 
LEASE 

breach   of  covenant  against   encumbrances   is  a,   56 

contents  of,  103 

grant  for  years  in,  103 
LEGAL  PRESUMPTION 

deed  as  to,  13 

identity  of  same  name  as  grantee  and  grantor,  17 
LEGAL  TITLE  AND  A  POWER 

trustee  may  hold  the,  at  the  time  time,  95 
LEGATEES 

benefit  of,  85 

sell,  mortgage  or  lease  land  for  the  benefit  of,  96 
LEVIES 

register  to  keep  books  of,  78 
LIEN 

creation  of,  by  a  mortgage,  100 
LIFE  ESTATE 

annuity  payable  from  rents  and  profits  in  a,  99 

limitations  on,  83 

release  of  power  by  tenant  in,  90 
LIMITATION 

alienation  shall  not  be  suspended  by  any,  95 

habendum  as  to,  45 

life  estates  as  to,  83 

recital  in  deed  snowing,  28 
LIMITATION  OF  POSSESSION 

reddendum  as  to,  12 
LIMITATIONS,  STATUTE  OF 

possession  larger  than  the  requirements  of  the,  121 
LIVERY  OF  SEIZIN 

delivery  takes  the  place  of,  69 

formality  of,  9 

qublic  delivery  as,  21 

unnecessary  when,  5 
LONGITUDE 

basis  of  ceasurement  from,  29 
LOW  WATER  MARK 

rule  as  to  title  of  land  under,  42 
MACOMB  FARM 

location  of,  35 
MALFEASANCE 

trustee  not  responsible  for,  87 
MAP 

mention  of,  in  deed,  40 
MARKETABLE  TITLE 

memorandum  of  sale  as  to,  105 
MARRIED  MAN 

wife  joins  in  deed  of,  16 
MARRIED  WOMAN 

accumulations  for,  85 

beneficial  powers  of,  to  dispose  of  less  than  fee,  89 

express  trust  for  the  benefit  of,  96 

limited  capacity  of  a,  to  make  a  contract,  60 

time  when,  reach  their  majority,  15 
MASTER  IN  CHANCERY 

taking  acknowledgment  by,  74 


16  INDEX. 

MAXIM 

that  is  certain,  etc.  23 
MEANDER  LINES  AND  POSTS 

area  of  land  as  to,  32 

boundaries  as  to,  44 
MEMORANDUM  OF  SALE 

contents  of  frauds  as  to,  105 

statute  of  frauds  as  to,  105 
MERIDIANS  OF  LONGITUDE 

basis  of  measurement  from,  29 
METES  AND  BOUNDS 

land  described  by,  28 
MIDDLE  NAME 

consequence  of,  in  deeds,  18 
MILITARY  RESERVE 

land  known  as,  35 

location  of,  36 
MILITARY  TENURE 

lands  effected  by,  2 
MILITARY  WARRANTS 

public  domain  as  to,  29 
MINISTER  PLENIPOTENTIARY 

acknowledgment  of  deeds  by,  76 
MINORS 

benefit  of,  83 

guardians  of,  to  sell  land,  when,  142 
MORTGAGE 

deed  subject  to  a,  grantee  assumes,  54 

evidence  of  the  security  is  the,  101 

power  of  sale  in  a,  passes  to  assignee,  94 
bound  by,  90 

unpaid  at   delivery,   56 
MORTGAGEE 

execution  of  the  power  as  to,  90 
MORTGAGES 

contents  of,  100 

deeds  intended  as,  81 

origin  of.  100 
MORTGAGE  TAX  LAW 

few  find  fault  with,  26 
MORTMAIN 

statutes  of,  1,  23 
MUNICIPALITIES 

restrictions  effectfng,  64 
MY  COMMISSION  EXPIRES 

certificate  of  acknowledgment,  72 
NAME 

assumed,  as  to  trade-names,  22 

certificate  of  acknowledgment  contains,  of  grantor,  72 

deed  as  to,  of  parties,  8 

derivation  of,  in  early  deeds,  18 
NAVIGABLE  OR  NON-NAVIGABLE  STREAMS 

rule  as  to  title  to  land  under,  42 
NORMAN  ACRE 

distinction  from  other  acres,  35 
NORMAN  CONQUEST 

relation  of,  to  conveyancing,  2 
NOTARIES 

acts  of,  anywhere  in  the  state,  73 


INDEX.  17 

NOTARY  PUBLIC 

interest  in  transaction  will  disqualify,  73 

interpreter  as  to,  73 

officer  of  a  corporation  act  as  a,  73 

official  to  make  acknowledgments  as  a,  71 

taking  of  acknowledgment  by,  74 
NOTE 

mortgages  are  usually  accompanied  by,  101 
NOTICE 

defective  execution  not,  81 

entry  book  is,  even  if  incorrect,  78 

land  contract  as   to,   108 

possession  of  grantor  after  delivery  is  not,  80 

prior  deed  as  to,  79 

recitals  are,  of  facts  stated,  16 

tenant  gives,  to  landlord,  104 

warranty  deed  as  to,  9 
NORTHWEST  TERRITORY 

land  known  as,  33 
OATH 

interpreter  as  to,  73 

ownership  of  land  effected  by,  2 
OCCUPATION 

premises  as  to,  11 
OFFICES  OF  CORPORATION 

action  of,  as  to  acknowledgments,  73 
ONE  DWELLING  HOUSE 

restrictions  as  to,  63 
ONE  DOLLAR  AND  OTHER  VALUABLE  CONSIDERATIONS 

reason  for,  25 
OPERATIVE  WORDS 

ancient  conveyances  as  to,  27 

excepting:  as.  48 

grant,  bargain,  sell,  remise,  release,  alien  and  confirm  are,  26 

premises  as  to,  11 

saving  and  excepting  as,  48 

words  of  limitation  follow,  27 
OPTIONS 

contents  of,  106 
ORAL  AGREEMENT 

purchaser  makes,  is  binding,  105 
OUTSTANDING  TITLE 

existence  of,  58 
PASSIVE  TRUSTS 

abolishment  of,  84 
PARK  LOTS 

land  known  as,  35 

location  of,  36 

starting  point  at,  38 
PARALLELS  OF  LATITUDE 

basis  of  measurement  from,  29 
PARAMOUNT  TITLE 

eviction  under,  58 
PARENT 

power  granted  by,  shall  be  an  advancement  when,  94 
PAROL  EVIDENCE 

consideration  shown  by,  25 

legal  effect  of,  to  vary  a  deed,  52 

written  contract  varied  by,  25 


18 


INDEX. 


PARTIES 

premises  as  to,  11 

recitals  binding  on,  16 

consideration  as  to,  24 

disqualification  of,  as  witnesses,  68 
PARTITION 

possession  as  to,  in  chancery,  149 

probate  court  as  to,  148 

title  through,  147 
PARTNERS 

deed  should  name,  as  grantees,  22 
PARTY  OF  FIRST  PART 

grantor  is  the,  15 
PATENT  OF  LAND   BY  THE  GOVERNMENT 

delivery  is  not  necessary,  71 

original  owner  as  to,  33 
PAYMENT  OF  CONSIDERATION 

premises  as  to,  11 
PEOPLE 

vassal  to  the  baron,  2 
PERPETUITIES 

example  of,   10 

limitation  as  to,  50,  51 

rules  of,  97 

suspension  of  alienation  in,  82 
PERSONAL  KNOWLEDGE 

notary  certificate  based  on,  73 
PHOTOGRAPH  GALLERY 

enjoining  the  erection  of,  63 
PLAT 

fact  that  is,  is  not  acknowledged  or  recorded,  41 

mention  of,  in  deed,  40 
POSSESSION 

expression  of,   in  land  contract,  108 

notice  of  rights  by,  80 

right  of,  84 

statute  of  limitations  as  to,  9 

title  by,  121 
POWER 

assignee  entitled  to,  of  sale  clause  in  a  mortgage,  94 

clause  in  conveyance  or  will  creates  a,  92 

covenant   for,  of  sale  in  a  mortgage,   101 

date  of,  is  that  of  the  instrument  creating  it,  93 

device  as  to,  of  sale  or  mortgage,  86 

donee  of  the,  89 

defective  execution  of  a,  remedy  in  court  of  chancery,  94 

extinguishment  of,  90 

instruction  regarding,  of  attorney,  127 

irrevocability  of,  when,  92 

recital  of,  unnecessary,  when,  93 

remedy  of  defective  execution  of  a,  in  court  of  chancery,  94 

reservation  in,  89 

several  persons  share  alike  in,  91 

special,  is  in  trust,  when,  91 

statute  of,  do  not  apply  to  power  at  attorney,  94 

trust  distinguished  from,  94 

indications  of  a,  87 

who  can  hold  a,  92 


INDEX.  19 

POWER  OF  ALIENATION 

suspension   of,   82,  95 
POWERS 

abolishment  of,  88 

definition  of,  88 

extinguishment  of,  89 

right  to  convey  as  to,  55 

statute  of,  50 

uses  and  trusts  as,  84 
PREMISES 

consideration  as  to.  11 

deed  as  to,  11 

description  of  the  property,  11 

divisions  of,  11 

parties  as  to,  11 

words  of  limitation,  11 
PRESENCE 

subscribing  witnesses  in  the,  of  the  grantor,  69 
PRESUMPTIONS 

father  and  son  in  deeds  as  to,  18 

initials  and  Christian  names  as  to,  17 

subsequent  purchase  as  to,  80 
PRESUMPTIVE  EVIDENCE 

possession  of  deed  is,  of  delivery,  69 

seal  of  corporation  is,  67 
PRINCIPAL  AND  AGENT 

notice  to,  79 
PRINCIPAL  MERIDIANS 

establishment  of,  29 
PRIVIES  AND  PARTIES 

consideration  as  to,  24 
PRIVATE  CLAIMS 

subdivision  of  land  into,  33 
PROBATE  PARTITION 

title  by,  149 
PROBATE  SALES 

title  through,  142 
PROOF  AND  CIRCUMSTANCES 

presumption  as  to,  3 
PROOF  OF  EXECUTION 

deed  as  to,  12 
PUBLIC  DOMAIN 

application  of,  29 
PUBLIC  POLICY 

restriction  in  the  use  of  land  as  to,  61 
PURCHASER 

purchaser  with  notice  can  be  a  bona  fide,  80 

quiet  enjoyment  and  warranty  inures  to  benefit  of,  59 

rights  of,  with  reserved  powers,  89 
QUARTER  LINES 

land-marks  as  to,  30 
QUARTER  POSTS 

land-marks  as  to,  30 
QUARTER  SECTIONS 

origin  of,  30 
QUIT-CLAIM 

action  on  misrepresentations,  16 

common  law  form  of,  8 

definition  of,  8 


20  INDEX. 

QUIT-CLAIM  DEED 

after  acquired  title  bv,  52 

bona  fide  purchaser  as  to,  9 

comparison  with  warranty   deeds,  8 

good  faith  purchase,  as  to,  79 

good  faith  of  subsequent  (purchaser  in,  77 

importance  of  date  in,  14 

ourchaser  of.  may  sue  grantor,  59 
QUIET  ENJOYMENT 

covenant  of,  54 

lease  for,  103 

words  of,  57 
REAL  ESTATE 

corporations  organized  to  hold,  23 
RECEIPT  OF  CONSIDERATION 

acknowledgment  of,  in  deeds,  25 
RECITAL 

covenant  may  be  a,  in  a  deed,  53 

corporate  name  in,  23 

former  name  of  a  married  woman  in,  19 

inchoate  dower  not  barred  by,  16 

premises  as  to,  11 

single  man  in,  16 

statement  of,  11 

strangers  bound  by  ancient,  17 

variance  in  spelling  of  names  shown  in,  17 

third  person  of  consideration,  24 
RECORD 

deed  not  entitled  to,  when,  16 

proof  or  acknowledgment  as  to,  13 

title  by,  123 
RECORD  TITLE 

possession  as  to,  80 
RECORDING   LAWS 

each   state  has,  74 

entry  book  as  to,  78 

patents  from  the  government  not  within,  78 

powers  are  within  the,  92 

quit-claim  deed  in,  79 

unrecorded  deed  between  the  parties  as  to,  78 
REDDENDUM 

deed  as  to,  12 

easement  as  to,  47 

reservation  as  to,  46 
REDEMPTION 

right  of,  in  land  contract,  109 
REGISTER  OF  DEEDS 

law  requires,  to  keep  entry  book,  78 
RELEASE 

operative  word  in  a  deed  is,  26 

premises  as  to,  11 
REMAINDER 

contingent,  created  on  a  prior,  in  fee,  82 
fee  may  be  created,  how,  95 

creation  of,  in  term  of  years,  83 

death  of  two  persons  as  to,  83 

fee  as  to,  50 

limitation  of,  89 
REMISE 

operative  word  in  a  deed  is,  26 


INDEX.  21 

RENTAL 

payment  of,  under  lease,  103 
RENTS  AND  PROFITS 

accumulations  of,  83 

application  of,  to  the  use  of  any  person,  86 

cestui  que  trustent,  4 

express  trust  for,  when,  96 

grant  giving  possession  entitles  grantee  to,  84 

person  entitled  to,  84 

person  who  receive,  from  trustee  cannot  release  or  convey,  98 

relation  to  statute  of  uses,  4 
REPAIRS 

covenant  for,  103 

landlord  should  not  covenant  to  make,  104 
RE-POSSESSION   OF  PREMISES 

leases  grant,  when,  103 
RESERVATION 

grant  of  the  land  as  to,  47 

grantor  makes,  when,  92 

termination  of,  47 

landlord  needs  a,  in  lease  to  inspect,  103 

recital  in  deed  showing,  28 

reddendum  as  to,  12 

riparian  rights  as  to,  44 
RESIDENCE  OF  PARTIES 

premises  as  to,  11 
RESTRICTION   CONSTRUCTIONS 

building  line,  65 

duplex  flat,  64,  65 

factory,  65 

fire  engine  house,  64 

flat,  64 

photograph  gallery,  63 

space  between  buildings,  64 

store  and  flat,  64,  65 

two-family  flat,  63 

two-story  dwelling-house,   64 
RESTRICTIONS 

agreement  as  to,  on  other  lands  to  be  subdivided,  65 

breach  of  covenant  as  to,  56 

change  of  condition  in  property  under,  62 

condition  in  a  deed  as  to,  49 

construction  of,  regarding  a  two-story  dwelling-house,  64 

corporate  holdings  of  the  Saxons  as  to,  4 

covenant  as  to  user  of  land  as  building,  61 

lot  sold  without,  cannot  be  subjected  to,  66 

one  breach  of,  will  not  estop  its  enforcement,  65 

rear  of  lot  on  corner  as  to,  66 
RESULTING  TRUSTS 

abolishment  of,  25 

defeat  of  title  in,  65 
RETROACTIVE  ACT 

acknowledgment  of  foreign  deed  may  be,  76 
REVERSION 

condition  as  to,  12 
RIGHT  TO  CONVEY 

covenants  of,  54,  55 

that  do  not  run  with  the  land  area,  55 


22  INDEX. 

RIPARIAN  OWNER 

title  of,  to  middle  of  stream,  42 
ROYAL  PARIS  ACRE 

arpent  as  a,  35 
SALEABLE  TITLE 

bona  fide  purchaser  having,  80 
SALES 

power  of,  in  deed  or  mortgage,  86,  94,  101 

title  through  execution,  45 
chancery,  144 
probate,  142 
SAXONS 

conquest  as  to,  4 
SCROLL  OR  DEVICE 

effect  of,  67 
SEAL 

acknowledgment  of  deed  going  into  another  state  must  have,  75 

certificate  of  acknowledgment  has  officer's,  72 

consul's  acknowledgment  as  to,  76 

deed  as  to,  12 

importance  of,  67 
SEALED  AND  DELIVERED 

feoffment  effected  by,  3 
SEALED  CONTRACTS 

assignment,  6 

bond,  discharges,  leases,  mortgages  are,  6 

deed  is,  6 
SECTION  CORNER 

land-marks  as  to,  30 
SECTION  LINES 

origin  of,  30 
SECTIONS  OF  LAND 

origin  of,  30 
SECURITIES 

deeds  intended  as,  recorded  as  mortgages,  81 
SEIZIN 

covenant  of,  54 

words   of,   54 
SELL 

operative  word  in  a  deed  is,  26 

premises  as  to,  11 
SERVITUDE 

breach  of  a  covenant  is  a  visible,  57 
SEVERAL  PERSONS 

execution  of  a  power  by,  92 
SHIP-LAND  TRACT 

land  known  as,  35 

location  of,  36 
SIGNATURE  OF  THE  PARTIES 

deed  as  to,  12  , 

grantor  places  his,  72 

officer  takinsr  acknowledgment  places  his,  72 
SIGNED,  SEALED  AND  ACKNOWLEDGED 

common  law  form  as  to,  8 
SIGNING 

neccssitv  of,  a  conveyance,  67 
SILENT  PARTNER 

deed  as   to,  22 
SINGLE  MAN 

recital  in  a  deed,  16 


INDEX.  23 

SON 

support  of  father,  12 
SPACE  BETWEEN  BUILDINGS 

restrictions  regarding,  64 
SPECIAL  POWERS 

designated  person  in,  91 

disposition   of,  88 

limitations  of,  as  to  their  validity,  90 

married  woman  as  to,  89 
SPENDTHRIFTS 

guardians  of,  to  sell  land,  when,  142 
STANDARD  QUARTER  POSTS  AND  SECTION  CORNERS 

definition  of,  31 

size   of,  31 
STATE 

adverse  possession  against,  42 
STATE  AND  COUNTY 

failure  to  designate,  effect  on  description,  38 
STATUTE  OF  FRAUDS 

relation  to  feoffment,  3 
STATUTE  OF  LIMITATION 

delivery  of  the  deed  as  a,  in  a  covenant,  53,  56,  121 
STATUTE  OF  USES 

covenants  as  to,  52 

definition  of,  4 

purchaser  vested  in  title  as  to,  5 
STATUTES 

implication  of  covenants  in  Michigan,  23 

what  law  governs  in,  24 
STATUTES  MORTMAIN 

definition  of,  4 
STATUTORY  FORECLOSURE 

contents  of,  128 
STATUTORY  FORM  OF  DEEDS 

acknowledgment  as  to,  13 

date  as  to,  13 
STATUTORY   LAW 

tax  as  to,  14 
STATUTORY  PROVISION 

condition  in  deeds,  50 

power  as  a,  50 

uses  and  trusts  as,  50 
STATUTORY   REQUIREMENTS 

donor  prohibited  from  dispensing  with  the,  93 
STATUTORY  SHORT  FORM  OF  DEED 

provision  for,  in  this  state,  8 
STORE  AND  FLAT 

restriction  regarding,  64,  65 
STRANGER 

ancient  recital  binds,  17 

officer  liable  for  damages  in  taking  acknowledgment  of,  72 
STRANGER  TO  THE  DEED 

reservation  to,  47 
STREET  OR  HIGHWAY 

title  of,  in  abutting  property,  41 
SUBMERGED  LAND 

grant  carries  title  to,  when,  42 

riparian  rights  at  right  angles  with  stream  as  to,  44 
SUBSEQUENT  ESTATE 

execution  of  the  power  of,  owner,  90 


24  INDEX. 

SUBSEQUENT  PURCHASE 

deed  void  as  against,  when,  77 
SUBSEQUENT  PURCHASER 

notice  to,  when  deed  is  recorded  as  mortgage,  81 

same  grantor  as  to,  79 
SUBSCRIBING  WITNESSES 

proof  of  acknowledgment  from,  76 
SUBSTANTIAL   BENEFIT 

nominal   conditions   not   affording,   93 
SUCCESSIVE  ESTATES  FOR  LIFE 

prohibition  of,  83 
SUCCESSORS 

words  of  limitation  in  deeds  as,  23 
SUPERIOR  TITLE 

eviction   under,   58 
SUPPORT  AND  MAINTENANCE 

condition  in  a  deed  as  to,  49 
SUPPORT  OF  FATHER 

condition  as  to  son,  12 
SURRENDER 

voluntary,  of  possession,  58 
SURVEYS 

first  systematic  method  of,  29 
SUSPENSION  OF  ALIENATION 

definition  of,  5 

example  of,  10 

future  estates  by  the.  are  void,  when,  95 
TAX 

covenant  in  mortgage  as  to,  100 

lien  at  delivery  as  a  valid,  56 

seller  or  purchaser  to  pay,  14 

time,  becomes  a  lien,  14 
TAX  CLAUSE 

land  contracts  as  to,  107 
TENANT  AT  WILL 

land  contract  as  to,  108 
TENANT  BY  ENTIRETY 

husband  and  wife  are,  when,  22,  21 
TENANT  FOR  LIFE 

limitation  to  leases  of,  89 
TENANT  FOR  YEARS 

inheritance  as  to,  89 
TENANTS  IN  COMMON 

common  law  rule  as  to,  21 

husband  and  wife  by  descent  are,  22 

two  or  more  grantees  are,  21 
TENANT  WITHOUT  PERMISSION 

land  contract  as  to,  108 
TENENDUM 

definition  of,  46 

part  to  a  deed,  12 
TEN  THOUSAND  ACRE  TRACT 

land  known  as,  35 
TERMINATION  OF  TRUST 

one  creating  trust  can  declare  to  whom  it  shall  pass  on,  87 
THIRD  PARTIES 

creditors  of  grantor  as,  24 
THIRD  PERSON 

consent  of,  as  to  power,  93 

delivery   of   deed   to,   sufficient,   70 


INDEX.  25 

TITLE 

administrators  and  executors  give,  through  probate  sale,  142 

courts  give,  by  partition,  147 

derivation  of,  through  execution  sale,  145 

exclusive  possession  under,  114 

grants  pass,  in  a  voidable  deed,  15 
middle  of  highway,  41 
through  chancery  sale,  144 

instructions  regarding,  through  conveyance,  124 

legal  presumption  of  identity  of  names  in,  17 

marketable  title  is,  by  possession,  121 

methods  of  obtaining,  through  foreclosure  of  mortgage,  128 

person  entitle  to  succeed  to,  through  inheritance,  132 

premises  as  to,  11 

recitals  in;  accepted  as  true,  16 

record  as  to,  123 

origin  of,  30 
TOWN  CORNERS 

land-marks  as  to,  30 
TOWNSHIPS 

origin  of,  30 
TRANSCRIPT 

record  of  conveyance  in  form  of,  76 
TRANSFER  OF  TITLE 

writing  as  to,  9 
TREATIES 

supreme  law  of  the  land,  10 
TRESPASS 

landlord  guilty  of,  when,  104 
TRUST 

assignment  of,  by  trustee,  87 

claim  of  creditor  impressed  on  a,  85 

consideration  paid  by  another,  no,  results,  85 

land  of  a,  vests  in  trustees,  87 

measure  of,  must  be  in  lives  of  being,  98 

power  distinguished  from,  94 
inclusion  in  a,  when,  90 
synonymous  with,  when,  87 
special,  in,  when,  91 

termination  of,  at  the  exercise  of  the  power,  98 
TRUSTEE 

distribution  by,  as  he  sees  fit,  91 

enforcement  by,  of  beneficial  rights,  87 

estate  of,  as  to  right  to  rents  and  profits,  84 

interest  of,  cannot  be  assigned,  87 

malfeasance  of,  87 

perpetuities  as  to,  10 
TRUSTS 

certain,  are  void,  86 

charitable  and  educational,  in  perpetuity,  99 

creation  of,  85 

expressed,  for  the  benefit  of  any  person,  86 
TWENTY-ONE  YEARS  OF  AGE 

contingency  of  vesting  in  one  less  than,  82 
TWO-FAMILY  FLAT 

restrictions  as  to,  63 
TWO  LIVES  IN  BEING 

accumulation   during,  83 

continuance  of,  as  to  alienation  of,  95 

vesting  of  an  estate  after,  83 
TWO-STORY  DWELLING  HOUSE 

construction  of,  64 


26  INDEX. 

TWO  WITNESSES 

requirement  of  statute  as  to,  74 
UNASSAILABLE  TITLE 

acquirement  of,  9 
UNCERTAINTY 

conveyance  to  deceased  person,  20 

deeds  are  void  because  of  uncertainty,  22 

meaning  of,  23 
UNDIVIDED  HALF 

husband  and  wife,  and  another  have,  22 
UNDUE  INFLUENCE 

deed  executed  by,  is  void,  15 
UNITED  STATES  CONSTITUTION 

provision  as  to  treaties  in,  10 
USE  AND  BENEFIT 

deed  ma.de  for  the,  85 
USES 

statute  of,  as  to  covenants,  52 
USES.AND  TRUST  POWER 

statutes  of,  84 
USES  AND  TRUSTS 

introduction  of,  in  England;  4 

power  granted  by  parent  is  an  advancement  in,  94 

statute  relating  to,  50 
USES  EXISTING 

confirmation  of,  84  ' 
USURY 

mortgage  tax  and  interest  is  sometimes,  101 
VALID  GRANT 

power  in  excess  of  authority  in  a,  93 
VALIDITY   OF  DEEDS 

acknowledgment  as  to,  13 
VALUABLE   CONSIDERATION 

deeds  as  to,  24 

grant  for,  paid  by  another,  85 

subsequent  purchaser  in  good  faith  as  to,  77 
VASSAL 

failure   of  performance   of  oath  of,  2 
VENDEE 

agreement  by,  to  purchase  the  land,  107 

interest  of,  in  land  contract  is  real  property,  109 
VENDOR 

enforcement  of  lieu  of,  108 

interest  of,  is  personal  property,  109 
VENUE 

-certificate  of  acknowledgment  contains,  72 

notary  acting  in  another  country,  73 
VESTING 

absolute   alienability  in,  97 

law   favors,  49 
VICE  CONSUL 

acknowledgment  of  deed  by,  76 
VIRGINIA  CESSION 

land  obtained  by,  33 
WARRANT  AND  DEFEND 

obligation  to,  fulfilled  by  mailed  fists,  53 
WARRANT  THE  TITLE 

covenant  as  to,  12 
WARRANTY 

covenant  of  a,  54 


INDEX.  27 

WARRANTY  DEED 

bona  fide  purchaser  by,  79 

comparison  of,  with  quit-claim  deed,  8 

covenants  in,  12 

definition  .of,    8 

printing  of,  a  crime,  7 

transfer  in,  of  an  after-acquired  title,  52 
WAIVOR 

act  of  the  parties   constituted  a,   64 
WATERS 

riparian   owner  has   title   to  middle   of',  42 
WIDOWER 

recital  in  a  deed,  16 
WIFE 

jointure  of  husband  with,   conveys  her  own  property,  45 

recital  in  a  deed,  16 
WILL 

alienation  of  land  by,  92 

power  is  created  by  a  clause  in  a,  92  * 

testator  shall  pass  land  authorized  in  a  power  to  devise  by,  93 
WITNESSES 

acknowledgment  of  deeds  in  presence  of,  74 

deed  as  to,  12 

necessity  of,  68 
WORDS  AND  PHRASES 

definition  of  to  and  toward,  40 
WORDS  OF  DESCRIPTION 

premises  as  to,  11 
WORDS  OF  INHERITANCE 

fee  will  pass  without,  45 

reservation  or  exception  to,  40 
WORDS  OF  LIMITATION 

fee  or  less  than  fee,  11 

habendum  as  to,  11 
WRITTEN  INSTRUMENTS 

conveyances  by,  77 

execution  of  a  power  by,  92 
WRITINGS  SEALED  AND  DELIVERED 

bonds  as  to,  6 

writings  as  to,  6 


